JUDGMENT
S.V. Maruthi, J.
1. This writ petition is filed to declare G.O.Rt. No. 1616 Revenue (Endts. II) Department, dated 9-12-1987 and the proceedings dated 25-4-1987 of the Executive Officer, Tirupathi imposing the punishment of stoppage of two increments with cumulative effect exclusive of the period spent on leave duly treating the period of absence as leave to which he is eligible, as illegal and arbitrary.
2. The petitioner was appointed as Shroff in the year 1966. On a charge levelled against him that he misappropriated an amount of Rs. 104/-, disciplinary proceedings were initiated against him. On a consideration of the explanation submitted to the said charge, the petitioner was removed from service by an order dated 15-2-1980. Aggrieved by the said order of removal, the petitioner filed an appeal before the Managing Committee, which was ultimately rejected. Thereafter, the petitioner approached this Court by way of a writ petition i.e., W.P. No. 16092/1984 on various grounds. The same was allowed, and this Court, directed the 2nd respondent to take up the appeal of the petitioner once again and award punishment that is commensurate with the offence that was proved against him. The learned Judge, however, did not intervene on the merits of the charge. Thereafter, the appeal was taken up by the 1st (sic. 2nd) respondent and by the impugned proceedings, he (sic. it) modified the punishment imposed on the petitioner, to the following effect:
“After careful consideration of the facts, the committee resolved (SIC) its Res.No. 3 dated 16-4-1987 to reduce the punishment of removal (SIC) that of stoppage of increment for a period of two years with cumulative effect exclusive of the period spent on leave duly treating the period of his absence as leave to which he is eligible.”
The appeal filed against the said order was rejected by the Government by G.O.Rt. No. 1616 dated 9-12-1987. The present writ petition is filed questioning the said Government Order confirming the order of the appellate authority dated 25-4-1987.
3.The main argument of the learned Counsel for the petitioner is that the petitioner was removed from service on 15-2-1980 and was reinstated into service on 16-5-1987, therefore he is entitled for pay and allowances for the said period. In addition, it is submitted that, the petitioner is also entitled for the increments during the said period. Therefore, the stoppage of increments for the period of 2 years should have been given effect to during the period i.e., 15-2-1980 to 16-5-1987, which is treated as leave period. If so, he would be entitled for the increments from 1982 to 1987 and the pay fixation should be done accordingly on reinstatement. The respondents have not taken any action for fixation of pay on his reinstatement taking into consideration the period which was treated as leave. In support of his contention, the petitioner relied on F.R. 54 of the A.P. Fundamental Rules, which also governs the T.T.D. Services.
4. The question, therefore, is whether the petitioner is entitled for pay and allowances during the period which was treated as leave i.e., from 15-2-1980 to 16-5-1987 and for the increments during the said period.
5. F.R. 54 empowers the competent authority to make a specific order on reinstatement of a Government servant who has been dismissed, removed or compulsorily retired. Sub-Rule (2) of Rule 54 deals with cases where the Government servant is completely exonerated, which is not relevant for the purpose of the present case. Sub-Rule (4) of F.R. 54 deals with cases of Government servants who are not completely exonerated, as in the present case, and cases where the requirement of Article 311 (2) of the Constitution is not complied with and, where no further enquiry is proposed. In cases referred to above, the Government servant is entitled to such proportion of the full pay and allowances to which he would have been entitled, subject to the provisions of Sub-Rules(6) and (7) of F.R. 54, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be. It empowers the competent authority to determine after giving notice to the Government servant the quantum to which he is entitled, after considering the representation if any, submitted by him in that connection within such period as may be specified in the notice. In other words, under Sub-Rule (4), the Government servant who has not been completely exonerated is entitled for a proportion of the pay and allowances, subject to Sub-Rules (6) and (7) and the competent authority has to determine such proportion of the pay and allowances to which he is entitled for the period during which he was out of service. Sub-Rule (6) of F.R. 54 is not relevant for the purpose of the present case. Sub-Rule (7) says that “the proportion of the full pay and allowances determined under the proviso to Sub-Rule (2) or under Sub-Rule (4) shall not be less than the subsistence allowance and other allowances admissible Under Rule 53”. Therefore, the competent authority has to determine the proportion of the pay and allowances to which the Government servant is entitled for the period during which he was out of service. On the facts of the present case, it does not appear that the respondents have determined the pay and allowances to which the petitioner is entitled for the period, which was treated as leave i.e., from 15-2-1980 to 16-5-1987, in the manner contemplated under Sub-Rule (4) of F.R. 54. It is obligatory on the respondents to determine the pay and allowances to which the petitioner is entitled for the period during which he was out of service after his reinstatement pursuant to the orders of the appellate authority dated 25-4-1987 modifying the punishment of removal into stoppage of increments for a period of 2 years with cumulative effect and treating the period of absence as leave.
6. Further, the punishment now imposed is stoppage of increments for a period of two years with cumulative effect. The respondents have not decided as to whether the petitioner is entitled for notional increments for the period during which he was out of service on his reinstatement on 16-5-1987. Whether the petitioner is entitled for notional increments during the period treated as leave depends on the type of the leave to which he is entitled. For instance under Sub-Clause (b)(ii) of F.R. 26, all leave other than extra-ordinary leave and the period of deputation out of India shall count for increment in the time-scale applicable to a post in which a Government servant was officiating at the time he proceeded on leave or deputation out of India and would have continued to officiate but for his proceeding on leave or deputation out of India. In other words extraordinary leave does not count for increments in the time scale applicable to a post. Therefore, the eligibility for increments depends on the nature of the leave to which a Government servant is entitled.
7. The respondents are, therefore, directed to determine the pay and allowances to which the petitioner is en titled under Sub-Rule(4) of F.R. 54 of the A.P. Fundamental Rules. In addition, they are also directed to consider whether the petitioner is entitled for increments during the period which was treated as leave and accordingly fix his pay with effect from the date on which he is reinstated. A notice as contemplated under Sub-Rule (4) of F.R. 54 shall be given to the petitioner before passing any orders in this regard by the competent authority. The entire exercise shall be completed within a period of 4 months from the date of receipt of a copy of this order.
8. The Writ Petition is allowed to the extent indicated above. No costs.