Termination Quashed: Employee Deemed In-Service for Qualifying Service, Entitled to Retiral Benefits.

The applicant, Bashir Ahmed Wani, was terminated from service via an order dated August 31, 1994.

He challenged this termination in WP (C) No. 259/2003, and the Hon’ble High Court quashed the termination order on April 30, 2010, directing his restoration to the position held on August 31, 1994, without back wages.

The respondents' challenge to this order was dismissed by the Division Bench on March 6, 2017.

After non-implementation and a contempt petition, the respondents issued Order No. 429-SHDJ of 2018 on February 28, 2018, "re-engaging" the applicant.

A corrigendum dated March 19, 2018, subsequently clarified that "re-engaged" should be read as "restored".

The applicant joined service and retired on superannuation in April 2021.

However, he was denied retiral benefits, including pension, cash in lieu of service, and gratuity, as per Order No. 42-SHDJ of 2022 dated March 24, 2022, and communication dated May 7, 2022, on the grounds of insufficient qualifying service.

The respondents contended that the applicant only rendered 3 years and 2 months of active service, falling short of the 10 years required for pension under Rule 240-A (VII) of the J&K Civil Services Regulations and the 5 years required for service gratuity under Rule 11(a) of J&K CSR Vol.-II.

Whether the applicant is entitled to retiral benefits and gratuity despite the respondents’ contention of insufficient qualifying service.

When a termination order is set aside and an employee is ordered to be "restored" to service, it implies continuity of service, treating the employee as if the termination never occurred.

Reliance from the Supreme Court's judgment in *Anantdeep Singh v. The High Court of Punjab and Haryana at Chandigarh* (Miscellaneous Application No. 267 of 2024 in Civil Appeal No. 3082 of 2022), which held that setting aside a termination order means the employee is "deemed to be in service" and should be reinstated with consequential benefits.

The court distinguished between "actual service" for back wages and "qualifying service" for pension, stating that denial of back wages due to "no work no pay" does not forfeit the service period for seniority and retiral benefits.

Rule 240-A (VII) of Jammu and Kashmir Civil Services Regulations, requiring 10 years for pension.

Rule 11(a) of J&K CSR Vol.-II, requiring 5 years for service gratuity for temporary government servants.

The court found that the Hon'ble High Court's order dated April 30, 2010, which quashed the termination and directed restoration, meant continuity of service despite the denial of back wages.

The respondents' own corrigendum dated March 19, 2018, substituting "re-engaged" with "restored," was interpreted as an admission that the applicant's service was continuous from June 23, 1994, until his superannuation on April 30, 2021.

The court reasoned that preventing the applicant from duties due to an illegal termination, subsequently quashed, could not be used by the respondents to deny statutory pensionary rights based on a service shortfall caused by their own wrong.

Applying the principle from *Anantdeep Singh*, the court concluded that once the termination was set aside, the applicant was deemed to have been in continuous service.

Therefore, the period from August 31, 1994, to the date of superannuation must be treated as continuous qualifying service.

This continuous service, when combined with his pre-1994 service, clearly exceeded the minimum requirements of 10 years for pension and 5 years for gratuity.

The respondents’ calculation, considering only physical service, was deemed legally unsustainable.

The impugned order No. 42-SHDJ of 2022 dated March 24, 2022, and the communication dated May 7, 2022, denying these benefits, were quashed and set aside.

The respondents were directed to release all retiral benefits to the applicant within 8 weeks from the date of receipt of the order.

Failure to do so would entitle the applicant to interest at 7% per annum until realization.