Intervening dies non period after reinstatement counts for pension, but not back wages.

The applicant, a Railway Station Master appointed on 23 February 1990, was promoted from time to time and was due to retire on 30 June 2024. He was compulsorily retired with immediate effect on 9 November 2020 under the applicable Railway and Fundamental Rules.

The applicant preferred a statutory appeal, pursuant to which the General Manager (Personnel), by order dated 26 October 2021, set aside the compulsory-retirement order and directed his reinstatement, while leaving the question of regulating the intervening period to the concerned Division after de novo consideration.

The Railway authorities thereafter rejected the applicant’s claim for regularisation of the intervening period and treated the period from 9 November 2020 to 20/23 December 2021 as “dies non” by orders dated 23 December 2021 and 17 February 2022.

The applicant subsequently superannuated on 30 June 2024 and challenged both orders, seeking treatment of the intervening period as duty, payment of salary and consequential pensionary benefits.

The delay in filing the Original Application was condoned on 17 December 2024.

Whether the Railway authorities were legally justified in treating the period between the applicant’s compulsory retirement and reinstatement as “dies non” after the compulsory-retirement order had been set aside on appeal?

Whether the applicant was entitled to continuity of service and consequential pensionary benefits for the intervening period, including arrears of salary/back wages?

Whether the impugned orders dated 23 December 2021 and 17 February 2022 were liable to be set aside for failing to properly apply the applicable Railway rules?

The Tribunal relied on Rule 1343 of the Railway Establishment Code/Rules, corresponding to Fundamental Rule 54, under which, upon reinstatement after the setting aside of an order of removal or compulsory retirement, the competent authority must determine the treatment of the intervening period, including pay, allowances and whether the period is to be treated as duty; where reinstatement follows the setting aside of the adverse order, the period may have to be treated as service for the relevant purposes.

Rule 504(3) of the Indian Railway Establishment Code, Volume I, provides that a Railway servant dismissed or removed from service and reinstated on appeal or revision is entitled to count prior service for leave purposes.

In Gurpreet Singh v. State of Punjab, (2002) 9 SCC 492, the Supreme Court held that reinstatement after setting aside termination ordinarily carries continuity of service, although arrears of salary may be denied depending on the circumstances.

The Tribunal also applied the principle that reinstatement is distinct from fresh appointment and that denial of continuity of service cannot ordinarily follow once the termination or compulsory-retirement order has been quashed.

The Tribunal found that the applicant’s compulsory retirement had been set aside by the appellate authority and that he had thereafter been reinstated; therefore, his case was one of reinstatement and not fresh appointment.

Applying Gurpreet Singh, the Tribunal held that continuity of service could not be denied merely because the applicant had not worked during the intervening period.

The respondents’ reliance on “no work, no pay” was insufficient to justify treating the entire period as “dies non” for all purposes, particularly when the original compulsory-retirement order had been annulled on appeal.

However, following the distinction recognised in Gurpreet Singh between continuity of service and payment of arrears, the Tribunal denied back wages for the period during which the applicant had not actually worked.

It consequently granted the benefit of counting the period for service-related pensionary purposes and directed that the period be adjusted against leave credited to the applicant.

The period from the date of compulsory retirement until reinstatement was directed to be counted for service and pensionary benefits, with adjustment against the leave credited to the applicant.

The applicant was expressly denied back wages for the intervening period.

Pending miscellaneous applications were disposed of, and there was no order as to costs.