ORDER : 1. This writ petition has been filed by the petitioner aggrieved against the Pension Pay Order (PPO) dated 14.06.2021 (Annex.P/7) and seeking direction to the respondents to issue a fresh PPO after counting the period from the date dismissal to the date of reinstatement as in service with all consequential benefits and that the order of recovery dated 22.06.2021 (Annex.P/9) be quashed and set aside. 2. It is, inter-alia, indicated that the petitioner was enrolled in BSF on 16.10.1989 as a Constable (GD) at STC, BSF, Jodhpur. While in service, an FIR No. 207/2000 under Section 302/34 IPC was lodged against the petitioner at Police Station-Surajgarh, District Jhunujhunu and accordingly, the petitioner was arrested on 04.01.2001 and was consequently placed under suspension w.e.f. 04.01.2001. The petitioner came to be convicted by Sessions Court, Jhunjhunu vide judgment dated 11.02.2002 and was sentenced to life imprisonment. Based on the conviction of the petitioner, he was dismissed from the service w.e.f. 18.04.2002 by order dated 19.04.2002. The petitioner filed appeal before the High Court, which came to be dismissed. Whereafter, the petitioner approached the Hon’ble Supreme Court, who by its order dated 13.04.2011 (Annex.P/2) acquitted the petitioner. 3. By order dated 04.08.2011 (Annex.P/6) the petitioner was reinstated in service and it was directed that the period of absence i.e. from the date of dismissal to the date of acquittal be regularized by granting leave of kind due under the Rules and no back wages be allowed for the said period of absence. 4. An order dated 27.08.2011 (Annex.P/4) was passed regularizing the services of the petitioner for the period 20.04.2002 to 15.08.2011 by granting E/L, HPL and EOL for 135 days, 142 days and 3128 days respectively. Whereafter, the petitioner by order dated 30.07.2020 (Annex.P/5) was granted voluntary retirement w.e.f. 31.10.2020 as per Rule 48 (A) of the Central Civil Services (Pension) Rules, 1972 (Rules of 1972) with pension and other benefits, as admissible under the Rules. 5. The respondents issued PPO (Annex.P/7) by counting his qualifying service at 21 years 11 months and 3 days. Further, a recovery order (Annex.P/9) was issued, inter-alia, indicating that a sum of Rs. 9,97,118/- was to be recovered from his pensionary benefits i.e. Rs. 3,47,118/- from commutation amount, Rs. 4,05,000/- and Rs. 2,45,000/- from the amount of death cum retirement gratuity and leave encashment of the petitioner, respectively. Further, a recovery order (Annex.P/9) was issued, inter-alia, indicating that a sum of Rs. 9,97,118/- was to be recovered from his pensionary benefits i.e. Rs. 3,47,118/- from commutation amount, Rs. 4,05,000/- and Rs. 2,45,000/- from the amount of death cum retirement gratuity and leave encashment of the petitioner, respectively. Further, till filing of the petition by the petitioner even as per the PPO issued by the respondents, the petitioner was not paid the pension. 6. Learned counsel for the petitioner made submissions that the action of the respondents in issuing the PPO (Annex.P/7) by taking the qualifying service of the petitioner at 21 years 11 months and 3 days, is ex-facie incorrect. It was submitted that the respondents apparently have deducted a period of absence i.e. from the date of dismissal to the date of acquittal from the qualifying service of the petitioner, which is contrary to the order dated 04.08.2011 (Annex.P/3), which was passed while reinstating the petitioner wherein, it was directed that the said period of absence be regularized by granting leave to the petitioner and only back wages were denied. Whereafter, on 27.08.2011 (Annex.P/74) the leave for the said absence period in fact was sanctioned by the competent authority and therefore, the deduction in qualifying service and ordering for recovery from the petitioner is ex-facie illegal. 7. Submissions were made that the provisions of Rule 25 of the Rules of 1972, which deal with counting of the past service on reinstatement are very specific, which provides that a Government servant dismissed from the service on reinstatement, is entitled to count his past service as qualifying service and that the period of interruption in the service between the date of dismissal and the date of reinstatement is to be regularized by a specific order of the authority, which passes the order of reinstatement and as the respondents have passed a specific order in this regard, the action of the respondents in this regard is contrary to the provisions. 8. 8. Further submissions have been made that the Hon’ble Supreme Court in Union of India and Others vs. Jaipal Singh, (2004) 1 SCC 121 , has inter-alia laid down that the respondent therein, a Government employee like the petitioner, who was reinstated in the service after acquittal, would be entitled to get the said period counted towards his service and therefore, the order impugned deserves to be quashed and set aside. 9. A reply to the writ petition has been filed by the respondents inter-alia indicating that the total period of 9 years, one month and 13 days has not been counted as qualifying service due to extra ordinary leave/dies-non. Further submissions have been made that it was observed by the audit party that with effect from the date of reinstatement to the date of voluntary retirement i.e. 16.08.2011 to 31.10.2020, over payment of pay amounting to Rs. 9,97,118/- was drawn by the petitioner and therefore, the said payment was to be recovered from the petitioner and as the petitioner had given undertaking that any over payment made to him, may be recovered (Annex.R/9), the petitioner cannot question the said recovery. Submissions have also been made that on reinstatement of the petitioner, his pay was wrongly fixed and he had drawn over payment of pay amounting to Rs. 9,97,118/- and therefore, the recovery of over payment has been directed against him. It is prayed that the writ petition deserves dismissal. 10. Learned Deputy Solicitor General made submissions that it is apparent from the record that the petitioner remained absent from duty and though his period of absence was regularized, he was ordered to be given EOL for a period of 3128 days and therefore, the said period of EOL could not have been counted towards qualifying service and therefore, the PPO which has been issued by taking his qualifying service deducting the said period, cannot be questioned. Further submissions were made that as the petitioner was made payment on reinstatement till his voluntary retirement beyond the amount, to which he was entitled, the said amount has also been rightly recovered and therefore, the petition deserves dismissal. 11. I have considered the submissions made by the counsel for the parties and have perused the material available on record. 12. 11. I have considered the submissions made by the counsel for the parties and have perused the material available on record. 12. The facts are not in dispute that the services of the petitioner were put to an end by order dated 19.04.2002 on account of his conviction by the criminal court w.e.f. 19.04.2002. On acquittal by the Hon’ble Supreme Court by order dated 04.08.2011 (Annex.P/3) the petitioner was reinstated, the order reads as under: “Dated, the 04 August 2011 ORDER 1. Whereas, the representation dated 05.05.2011 submitted by No. 89644707 Ex-Const Satyapal Singh of STS BSF Tigri Camp requesting for re-instatement in service, on his acquittal from the offences u/s 302/34 IPC, has been examined in detail. 2. Whereas, after careful consideration of all the points raised in the representations, fact and circumstances of the case and judgment dated 13th April 2011 passed by Hon’ble Supreme Court of India, the Competent Authority is pleased to set-aside the dismissal Order No. Estt/STS/Disc/SPS/2002/848-950 dated 10.04.2002 passed by the DIG STS BSF Tigri Camp and re-instated No. 89644707 Ex-Const Satyapal Singh of STS BSF Tigri Camp, in service with immediate effect. 3. Whereas, the period of absence i.e. from the date of dismissal to the date of acquittal, may be regularized by granting leave of kind due i.e. EL, HPL and EOL as per rules and no back wages may be allowed to the individual for the said period of absence.” Pursuant to order dated 04.08.2011, order dated 27.08.2011 (Annex.P/4) was passed, which reads as under: “ORDER 1. In compliance of FHQ (Pers Dte-Estt Sec) Order No. 13/113/2011-Estt/BSF/24033-356 dated 04.08.2011 No. 89644707 Ex-Constable Satyapal Singh S/o Shri Juhana Ram resident of village Khari Janav, Post Khari Janav, P.S. Hammirawas, District-Churu (Raj.) who was dismissed from service vide STS, BSF, New Delhi Order No. Estt/STS/Disc/SPS/2022/848-950 dated 19.04.2022 is hereby re-instated in service w.e.f. 04.08.2011 (AN). 2. The period of absence from the date of dismissal to the date of acquittal (From 9.04.2002 (AN) to 13.04.2011) i.e. 3281 days and intervening period w.e.f. 14.04.2011 to 16.08.2011 (FN) i.e. date of reporting in STS 124 days, Total period 3405 days (3281+124 days) on re-instatement of individual is hereby regularized as under: (i) From 20.04.2002 to 01.09.2002 by 135 days E/L (ii) From 02.09.2002 to 21.01.2003 by 142 days HPL (iii) From 22.01.2003 to 15.08.2011 by 3128 days EOL 3. Further no back wages is allowed to individual for the period of said absence.” 13. A perusal of above would reveal that while reinstating the petitioner by order dated 04.08.2011 it was directed by the competent authority that the period of absence i.e. from the date of dismissal to the date of acquittal, may be regularized by granting leave of kind due i.e. EL, HPL and EOL as per Rules and no back wages may be allowed to the individual for the said period of absence. Whereafter, by order dated 27.08.2011 the period of absence from the date of dismissal to the date of acquittal i.e. for 3281 days and intervening period till the date of reporting in STS of 124 days, in total 3405 days, were ordered to be regularized by granting E/L, HPL and EOL for 135 days, 142 days and 3128 days, respectively. 14. The passing of said order by the respondents, is in consonance with provisions of Rule 25 of the Rules of 1972, which reads as under: “Rule 25 - Counting of part service on reinstatement: (1) A Government who is dismissed, removed or compulsorily retired from service, but is reinstated on appeal or review, is entitled to count his past service as qualifying service. (2) The period of interruption in service between the date of dismissal, removal or compulsory retirement, as the case may be, and the date of reinstatement, and the period of suspension, if any, shall not count as qualifying service unless regularized as duty or leave by a specific order of the authority which passed the order of reinstatement.” 15. A bare perusal of above Rule indicates that a Government servant, who is dismissed from the service and is reinstated, is entitled to get counted his past service as qualifying service. It is further provided that the period of interruption in the service between the date of dismissal and the date of reinstatement shall not count as qualifying service unless regularized as duty or leave by specific order of the authority, which passed the order of reinstatement. 16. In the present case, as the quoted hereinbefore, by order dated 04.08.2011 the competent authority had ordered for regularization of the period of absence from the date of dismissal to the date of acquittal, by granting leave as per Rules, which leave, as quoted hereinbefore, has been granted by order dated 27.08.2011. 16. In the present case, as the quoted hereinbefore, by order dated 04.08.2011 the competent authority had ordered for regularization of the period of absence from the date of dismissal to the date of acquittal, by granting leave as per Rules, which leave, as quoted hereinbefore, has been granted by order dated 27.08.2011. Once order has been passed for regularization of the service on grant of leave and the leave as per Rules has already been granted, under the provisions of Rule 25 of Rules of 1972, the said service has to be counted as qualifying service by the respondents. 17. The respondents, in fact, counted the period between the date of dismissal to the date of acquittal as having been regularized and accorded the pay scale to the petitioner on his reinstatement, which continued till the petitioner was accorded voluntary retirement, however, while issuing the PPO, the respondents without passing any specific order in this regard, have deducted the period of EOL granted to the petitioner from the qualifying service and issued the PPO. Further, out of the amount paid to the petitioner from the date of reinstatement till the date of retirement, a sum of Rs. 9,97,118/- was ordered to be recovered, that also, without passing any order in this regard and affording any opportunity of hearing to the petitioner. The said order, apparently has been passed only on account of deduction of period of qualifying service of the petitioner, which fact is reflected from the pay and allowance recovery details of the petitioner, which was supplied to him under the R.T.I. Act by the respondents wherein, it is clearly indicated that the amount of Rs. 9,97,118/- was arrived at by indicating the same as over payment (due to increased basic pay). 18. In reply to the legal notice issued by the petitioner, vide communication dated 12.10.2021 (Annex.P/11) the respondents indicated that by taking a sympathetic view in petitioner’s case, his period of imprisonment/ absence from the duties of 3128 days, was regularized by granting him 3128 EOL, otherwise he was not entitled for such leave and therefore, the period cannot be counted as qualifying service. 19. 19. The entire action of the respondents in deducting the period from the date of dismissal till the date of reinstatement to the extent of his EOL is ex-facie incorrect and against the express provisions of Rule 25 of the Rules of 1972. As already observed hereinbefore, the petitioner was reinstated with specific stipulation regarding regularization of the period of his absence and thereafter order in this regard according leave to the petitioner was passed, the stand now sought to be taken by the respondents, without passing any order worth the name by claiming that the period has to be treated as dies-non/cannot be counted for qualifying service, has absolutely no basis in law and therefore, the order/action impugned in this regard cannot be sustained. 20. The Hon’ble Supreme Court in the case of Jaipal Singh (supra), wherein the Division Bench of High Court had allowed the writ petition filed by the respondent therein and directed reinstatement with full back wages and consequential benefits, came to the conclusion that the order of High Court insofar as it directed payment of back wages was liable to be set aside, however, thereafter observed as under: “The respondent will be entitled to back wages from the date of acquittal and except for the purpose of denying the respondent actual payment of back wages, that period also will be counted as period of service, without any break. The re-instatement, if not already done, in terms of the order of the High Court will be done within thirty days from today. The appeal is allowed and disposed of on the above terms.” (Emphasis supplied) 21. In the present case, while ordering for reinstatement, no back wages have been permitted to the petitioner and therefore, in the light of directions in the case of Jaipal Singh (supra) also, the period from the date of dismissal till the date of reinstatement, has to be counted as qualifying service by the respondents and the stand taken, contrary thereto cannot be sustained. The recovery, ordered by the respondents by order dated 22.06.2021 (Annex.P/9) consequently, also cannot be sustained as the said order has been passed based on the determination that period of EOL was wrongly counted towards qualifying service by the respondents. 22. In view of above discussion, the petition filed by the petitioner is allowed. The recovery, ordered by the respondents by order dated 22.06.2021 (Annex.P/9) consequently, also cannot be sustained as the said order has been passed based on the determination that period of EOL was wrongly counted towards qualifying service by the respondents. 22. In view of above discussion, the petition filed by the petitioner is allowed. The action of the respondents in reducing the qualifying service of the petitioner by 3128 days is set aside. Further, the order of recovery amounting to Rs. 9,97,118/- dated 22.06.2021 (Annex.P/9) also is quashed and set aside. 23. The respondents are directed to issue fresh PPO to the petitioner after counting the said period of 3128 days as part of his qualifying service and make payment of all his retirement benefits to him after taking into consideration the amount already paid to the petitioner. 24. The petitioner would be entitled to interest on the delayed payment in terms of Rule 65 of the Central Civil Services (Pension) Rules, 2021. On the amount deducted by the respondents/not paid to the petitioner and not covered under the provisions Rule 65 of the Rules of 2021, the petitioner would be entitled to interest @ 6% per annum from after three months of his date of retirement. 25. Needful in above terms shall be done by the respondents within a period of six weeks from the date of this order.