ORDER 1. By this writ petition, the petitioner has challenged the order dated 25.9.2012 whereby the suspension period of the petitioner has not been treated as the period spent on duty and has not been counted in the qualifying service for calculation of pension. 2. The petitioner's case is that he was working as Senior Assistant (Auditor) and vide order dated 25.7.1992 he was placed under suspension and the departmental enquiry was initiated. Thereafter, by order dated 11.6.1996 the punishment was imposed and the petitioner had joined back in service on the same day on 11.6.1996. On reaching the age of superannuation he has retired on 31.8.2010 and his pension was settled by order dated 14.2.2012, but the suspension period was not counted for the purpose of pension, therefore, the petitioner had submitted the representation and by the impugned order dated 25.9.2012 the representation has been rejected. 3. Learned counsel for petitioner submits that the suspension period is required to be counted for the purpose of calculating the qualifying service for pension and he has also submitted that the un-amended rule 23 of the Pension Rules will apply. 4. As against this, learned counsel for respondents has submitted that since the punishment was imposed in the departmental enquiry and by the order of punishment the suspension period was treated to be period of punishment, therefore, the petitioner is not entitled for inclusion of the said period in terms of amended rule 23. 5. I have heard the learned counsel for parties and perused the record. 6. Undisputedly the petitioner has remained under suspension from 25.7.1992 to 11.6.1996. On conclusion of the departmental enquiry the order of punishment dated 11.6.1996 was passed imposing the following punishment:- ¼1½ mudh nks vkxkeh osru o`f);k¡ lap;h izHkko ls jksds tkus dk naM vf/kjksfir fd;k tkrk gSA ¼2½ mudh fuyacu dh vof/k naM ekuh tk,xh rFkk mUgsa bl vof/k esa thou fuokZg HkÙks ds vfrfjDr vkSj dksbZ osru HkRrs vkfn ns; ugha gksaxsA ¼3½ mUgsa Hkfo"; esa laosnu'khy 'kk[kkvksa esa tSls fd Bsdsnkj ds ns;dksa dk vkWfMV] laifÙk izca/ku vkfn 'kk[kkvksa esa inLFk ugha fd;k tk,A 7. Subsequently vide order dated 3.7.1998 the punishment No.(3) above relating to posting in sensitive branch was deleted. 8. Subsequently vide order dated 3.7.1998 the punishment No.(3) above relating to posting in sensitive branch was deleted. 8. The un-amended rule 23 of the M.P. Civil Services (Pension) Rules 1976 on which the petitioner is relying upon reads as under :- "23] Counting of periods of suspension.- Time passed by a Government servant under suspension pending inquiry into conduct shall count as qualifying service on reinstatement." 9. The aforesaid Rule has been amended with effect from 30.12.1999 which reads as under:- "23] Counting of periods of suspension.- Time passed by a Government servant under suspension pending inquiry into conduct shall be counted as qualifying service where on conclusion of inquiry, he is acquitted completely or suspension is declared to be improper. In other matters the period of suspension shall not be counted unless under the rule governing such matters, the authority competent to pass orders does not declare specifically that it will be counted to the extent declared by the competent authority." 10. In terms of the un-amended rule 23 which was prevailing as on the date of revocation of suspension and passing the order of punishment, the petitioner was entitled to count the period of suspension in qualifying service on reinstatement without any rider or limitation. Applying the amended rule and not counting the period of suspension while calculating the qualifying service may adversely affect the pensionary benefits of the petitioner, therefore, by way of subsequent amendment the right which was also created in favour of the petitioner to count the period of qualifying service cannot be taken away. The amended provision can have no retrospective application also for the reason that the need for application of mind by the competent authority for making a declaration for counting the suspension period as required by the amended rule arose only after the amendment, hence, the cases anterior to the date of amendment cannot be made to suffer for want of declaration. 11. 11. The supreme Court in the matter of Pyare Lal Sharma v. Managing Director and others [ (1989)3 SCC 448 ], in somewhat similar case wherein an amendment was made in Regulation 16.14 of the Jammu and Kashmir Industries Employees Service Rules and Regulations on 20th April, 1983 providing for termination of service on the ground of unauthorized absence and the said amended regulation was sought to be applied retrospectively for taking action on the basis of the unauthorized absence prior to the amendment, has found that such an amendment cannot be applied with retrospective effect by holding as under:- "21--This takes us to the last point which we have discovered from the facts. Regulation 16.14 before amendment consisted of only clauses (a) and (b) relating to abolition of post and unfitness on medical ground. The company had no authority to terminate the services of an employee on the ground of unauthorised absence without holding disciplinary proceedings against him. The regulation was amended on April 20, 1983 and grounds (c) and (d) were added. Amended regulation could not operate retrospectively but only from the date of amendment. Ground (c) under which action was taken came into existence only on April 20, 1983 and as such the period of unauthorised absence which could come within the mischief of ground (c) has to be the period posterior to April 20, 1983 and not anterior to that date. The show cause notice was issued to Sharma on April 21, 1983. The period of absence indicated in the show cause notice is obviously prior to April 20, 1983. The period of absence prior to the date of amendment cannot be taken into consideration. When prior to April 20, 1983 the services of person could not be terminated on the ground of unauthorised absence from duty under Regulation 16.14 then it is wholly illegal to make the absence during that period as a ground for terminating the services of Sharma. It is basic principle of natural justice that no one can be penalised on the ground of a conduct which was not penal on the day it was committed. The date of show cause notice being April 21, 1983 the unauthorised absence from duty which has been taken into consideration is from December 20, 1982 to April 20, 1983. It is basic principle of natural justice that no one can be penalised on the ground of a conduct which was not penal on the day it was committed. The date of show cause notice being April 21, 1983 the unauthorised absence from duty which has been taken into consideration is from December 20, 1982 to April 20, 1983. Whole of this period being prior to the date of amendment of regulation 16.14 the same could not be made as a ground for proceeding underground (c) of Regulation 16.14. The notice served on the appellant was thus illegal and as a consequence the order of termination cannot be sustained and has to be set aside. 12. Having regard to the aforesaid analysis, I am of the opinion that in the case of the petitioner un-amended rule 23 will apply which was prevailing on the date when the suspension period of the petitioner was over and the order dated 11.6.1996 was passed. 13. Hence, the writ petition is allowed and the impugned order dated 25.9.2012 is set aside. The respondents are directed to count the suspension period for the purpose of qualifying service. Suryapal Singh Chouhan for petitioner; Sunil Jain with Ms. Samiksha Pandey for respondents.