Reinstatement With Continuity Of Service Entitles Notional Pay Fixation But Excludes Arrears For Ousted Period: Delhi High Court
The Court clarified that while the Supreme Court's direction to continue services preserves continuity for notional pay refixation, it does not invalidate the prior termination so as to entitle the employee to back wages or retrospective promotions.
Justice C Hari Shankar, Justice Om Prakash Shukla, Delhi High Court
The Delhi High Court has partly allowed a writ petition by its former Temporary Chauffeur, ordering its administration to notionally refix his pay from his original 2013 appointment. The Bench held that a judicial direction for reinstatement with "continuity of service" mandates placing the employee at parity with contemporaneous peers regarding increments and pay scales upon rejoining.
However, the Bench ruled that back wages are not an automatic consequence of reinstatement, particularly since the Supreme Court's order setting aside his termination was a magnanimous exercise of equity rather than a finding of illegality on merits.
The Court specified that an order directing an employer to "continue the services" must be interpreted as it stands, effectively protecting the employee’s continuity for specific service benefits like pay parity. However, such continuity cannot be extended to claim retroactive promotions or active emoluments for the ousted period if the employee's status remained that of a probationer. The court underscored that a probationary period is deemed to persist under such conditional reinstatements, thereby legally barring promotional claims until the successful completion of the mandated probation.
A Division Bench comprising Justice C. Hari Shankar and Justice Om Prakash Shukla while referring to precedents, observed, “…a direction for reinstatement with continuity in service would entitle the employee to have his pay fixed, on his reinstatement, as though he had continued in service during the period following his termination, which would include grant of notional increments and the like, but would not entitle him to any arrears of salary on that count. In the case of the petitioner, therefore, he would be entitled to have his pay refixed, treating him as having continued in service with effect from 14 June 2013. In case there are other chauffeurs who had been selected with the petitioner and had joined from the same date, the petitioner would be entitled to have his pay fixed to be at par with them”.
Senior Advocate Shyam Mehta appeared for the petitioner and Advocate Beenashaw N. Soni appeared for the respondent.
“Continuity of service would, however, only imply that the probation period of the petitioner would be deemed to continue till the expiry of two years from the date of the petitioner’s rejoining, consequent to the order passed by the Supreme Court. This would not, however, entitle the petitioner to arrears of salary or any other benefits or to emoluments for the period when the petitioner remained out of service”, the Bench further observed.
The factual matrix of the dispute traces back to June 14, 2013, when the petitioner was appointed as a Temporary Chauffeur in the Delhi High Court. Due to multiple complaints regarding his performance, his services were terminated on March 4, 2016, during his probationary period under Rule 5 of the Central Civil Services (Temporary Service) Rules, 1985.
The petitioner unsuccessfully challenged his termination before a Division Bench of the High Court and a subsequent review petition in 2018.
He then approached the Supreme Court via a Special Leave Petition. On February 15, 2022, after taking note of an undertaking filed by the petitioner promising diligent service, the apex court set aside the termination and directed the respondent to continue his services initially on probation for two years.
Upon rejoining, the petitioner submitted a representation demanding full continuity from 2013 with all arrears and promotions, which the High Court administration rejected, prompting the present writ petition.
Considering the Supreme Court’s order, the Court noted that the it did not hold the original 2016 termination to be illegal on merits but had magnanimously granted the petitioner a second chance ex debito justitiae.
Accordingly, the Court declared that the petitioner would be deemed to have joined in 2013 but would remain on probation until the expiry of two years from his 2022 rejoining date.
It directed the respondents to refix the petitioner’s pay by granting notional increments from his original appointment date and to disburse any resulting post-rejoining arrears within eight weeks. The claims for promotional benefits and arrears from 2016 to 2022 were explicitly rejected, while the question of seniority was left open for future adjudication.
Cause Title: Gaurav Kumar v. High Court of Delhi, Through its Registrar General & Ors. (Neutral Citation: 2026:DHC:5169-DB)
Appearances:
Petitioner: Shyam Mehta, Sr. Adv., Mohit Paul, Rangoli Seth, Sanjleena Lal, Rohit, Advocates.
Respondent: Beenashaw N. Soni, Mansi Jain, Ravi Kant Srivastava, SPC, Robert Laishram, Advocates.