High Court · 2025

1. Heard learned counsel for the petitioner and learned Standing Counsel for the State-respondents.

2. The present petition has been filed for the following reliefs: "I issue a writ order or direction in the nature of Certiorari, thereby quashing the impugned order 09.08.2023 Patrank 1373-74/Sa.Ka./Stha.- 4/2023-24 contained as ANNEXURE No.1 issued by the opposite party no.2 to the extent through which the order has been passed not to pay the leave encashment and retiral dues of the petitioner, in the interest of justice. II issue a writ order or direction in the nature of Mandamus, thereby commanding the opposite parties especially opposite party no.2 to release the leave encashment for 300 days along with the interest @ 14 % till the actual payment is made to the petitioner. III Issue a writ order or direction in the nature of Mandamus thereby commanding the opposite parties specially opposite party no.5 to correct the date of appointment of the petitioner as 03.05.1986 at the place of 01.01.1994 in the relevant record and further be pleased to direct the opposite parties to refix the pensionary benefit as well as other benefit payable to the petitioner according to correct date of appointment i.e. 03.05.1986, in the interest of justice. IV. Issue a writ order or direction in the nature of Mandamus, thereby directing the opposite parties to take payment of pension as well as other benefits as already has been getting the petitioner, in the interest of justice during the pendency of the writ petition. V. Issue a writ order or direction in the nature of Mandamus, by restraining the opposite parties not to give any effect to the petitioner, in the interest of justice. VI. issue any other writ, order or direction which this Hon'ble Court may being just and necessary in the facts and circumstances of the case may also be passed; and to allow this writ petition with costs."

3. Learned counsel for the petitioner has submitted that the petitioner was initially appointed on the post of Village Development Officer on ad-hoc basis on 3.5.1986 by District Magistrate, District Kheri. Subsequently his services has been regularized from 1.1.1994. Later he was promoted to the post of Assistant Development Officer (Sa.Ka.) with pay scale of 52000-2022 plus grade pay Rs.2800/- vide order dated 17.10.2017. It is further submitted that the petitioner has retired on 28.2.2023 after attaining the age of superannuation. It is further submitted that by the impugned order dated 9.8.2023 after considering the regular services of the petitioner the opposite party no.2 has paid gratuity and pensionary benefits and on the other hand, denying the pay leave encashment saying that the petitioner's appointment on ad - hoc basis which is not sustainable. The opposite party No.2 after competition of 8 years' services from the date of appointment on 1.3.1995 provided Selection Grade Pay Rs.30/- as additional pay and at the time of retirement wrongly counted the services of the petitioner from 1.1.1994 from the date of regularization.

4. It is in the aforesaid circumstances this Court has to consider the prayer made by the petitioner in the present petition, which is for a direction to the respondents to release the amount of gratuity, leave encashment, commutation of pension and GIS in favour of the petitioner. It is also noticed that pension is paid to the petitioner on his superannuation. In Article 351A of the Civil Service Regulations, it is provided that the Governor has a right to withhold or withdraw pension or ordering recovery from pension, only when a Government servant is found to be guilty of having caused pecuniary loss in departmental or judicial proceedings. From the aforesaid it is clear that such a right of withholding or making any recovery has to be exercised only on conclusion of departmental proceedings. The same points are also mentioned in Article 919A of the said regulations.

5. For the reference, the abovementioned Articles are as follows: "351-A. The Governor reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if the pensioner is found in departmental or judicial proceedings to have been guilty of grave misconduct, or to have caused pecuniary loss to Government by misconduct or negligence, during his service, including service rendered on re-employment after retirement: Provided that- (a) such departmental proceedings, if not instituted while the officer was on duty either before retirement or during reemployment- (i) shall not be instituted save with the sanction of the Governor. (ii) shall be in respect of an event which took place not more than four years before the institution of such proceeding; and (iii) shall be conducted by such authority and in such place or places as the Governor may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made. (b) Judicial proceedings, if not instituted while the officer was on duty either before retirement or during re-employment, shall have been instituted in accordance with sub-clause (ii) of clause (a); and (c) the Public Service Commission, U.P. shall be consulted before final orders are passed. [Provided further that of the order passed by the Governor relates to a cash dealt with under the Uttar Pradesh Disciplinary Proceedings, (Administrative Tribunal) Rules, 1947, it shall not be necessary to consult Public Service Commission]. Explanation-For the purposes of this article- (a) Departmental proceeding shall be deemed to have been instituted when the charges framed against the pensioner are issued to him or, if the officer has been placed under suspension from an earlier date, on such date; and (b) judicial proceedings shall be deemed to have been instituted: (i) in the case of criminal proceedings, on the date on which complaint is made, or a charge-sheet is submitted, to a criminal court; and (ii) in the case of civil proceedings, on the date on which the plaint is presented or, as the case may be, an application is made to Civil court Note- As soon as proceedings of the nature referred to in this article are instituted the authority which institutes such proceedings shall without delay intimate the fact to the Audit Officer concerned. 919-A. (1) In case referred to in Article 351-AA the Head of Department authorize the provisional pension equal to the maximum pension which would have been admissible on the basis of qualifying service up to the date of retirement of the Government servant or if he was under suspension on the date and retirement up to the date immediately preceding the date on which he was placed under suspension. (2) The provisional pension shall be authorized for the period commencing from the date of retirement up to and including the date on which after conclusion of departmental or judicial proceeding or the enquiry by the administrative Tribunal; as the case may be, final orders are passed by the competent authority. (3) No death-cum-retirement gratuity shall be paid to the Government servant until the conclusion of the departmental proceedings, judicial proceedings or the enquiry by the Administrative Tribunal and issue of final orders thereon. (4) Payment of provisional pension made under clause (1) above shall be adjusted against final retirement benefits sanctioned to such Government servant upon conclusion of the proceeding or enquiry referred to in clause (3) but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or withheld either permanently or for special period."

6. The interpretation of rules stopping post retiring dues, have to be strictly construed. Undoubtedly, Articles 351A as well as 919A would enable the respondents to withhold the payment of pension and other post retiral dues but the same is subjected to a condition that the judicial proceeding should be pending on the date of superannuation of the delinquent Government servant.

7. This Court is, thus, of the considered view that the stage for exercise of powers having impact on pension arises only upon conclusion of the proceedings. Legal principles in this regard have been enunciated by a Full Bench decision of this Court in the case of Shiva Gopal V. State of UP reported in 2019 (5) ADJ (441) (FB). Relevant part of the aforesaid judgment is a under: "78. In view of the foregoing discussions, we arrive at the following conclusions: (i) Future good conduct is implied condition of ever grant of pension. Full pension is not to be given as a matter of course, or unless the service rendered has been thoroughly satisfactory. (Article 351/351-A) (ii) Article 351 and/or 351-A can be invoked by the State Government or the Governor, as the case may be, if the pensioner (a) be convicted of serious crime; (b) be guilty of grave misconduct (c) caused pecuniary loss to the government in service. The power can be exercised in either of the eventualities. The action thereunder is punitive. (iii) Pendency of disciplinary/judicial proceedings on the date of retirement, or instituted after retirement, provisional pension equal to maximum pension as mandated under Article 919-A may be sanctioned to the government servant for the period upto conclusion of the proceedings. (Article 351-AA/Article 919-A(1)/(2)) (iv) No gratuity is payable to the government servant during pendency of disciplinary/judicial proceedings/enquiry by Administrative Tribunal, until conclusion of the proceedings/enquiry and orders being passed thereon by the competent authority. [Article 919 A(3)] (v) The Regulations mandates that government servant is entitled to provisional pension equal to maximum pension during pendency of the proceedings until conclusion. The Regulations does not mandate the entitlement of full pension/gratuity on the ground of 'hardship' being faced by the pensioner pending proceedings. (vi) The nature of the charge/allegations against the government servant cannot be gone into during pendency of the proceedings. The government servant whether guilty of 'serious crime' and/or 'grave misconduct' in the opinion of the competent authority can be assessed/considered while passing final orders upon conclusion of the disciplinary/judicial proceedings. (vii) On combined reading of Article 351, 351-A, 351-AA and 919-A, the impact on pension/gratuity would arise after the competent authority has had the occasion to consider and issue final orders upon conclusion of the proceedings. The cause to the government servant arises thereafter and not at the stage pending proceedings/ enquiry."

8. Accordingly, this Court is of the considered view that in case, judicial proceedings were not pending on the date of superannuation of a delinquent Government servant, then he would be entitled to the get post retiral dues and the respondents cannot take assistance and invoke the provisions of Articles 351A and 919A of the Civil Service Regulations to withhold the post retiral dues of such a delinquent Government Servant. Hence, I find that there is no justification from the respondents for declining the payment of the post retiral dues to the petitioner as the disciplinary proceedings had concluded and the criminal trial had not commenced.

9. I have also perused the Government Order dated 28.10.1980 which provides that at the time of superannuation of the Government servant if any judicial proceeding or vigilance inquiry, etc., are pending then final pension and the amount of gratuity cannot be paid to him. Thus, the provisions of Government Order dated 28.10.1980 will not enable the respondents to withhold the post retiral dues of the petitioner inasmuch as on the date of his superannuation, neither any judicial proceeding nor any matter before the Administrative Tribunal or vigilance inquiry was pending against the petitioner. I also do not find any government order according to which, even if a SIT or the investigation of the police is pending which may enable the respondents to withhold post retiral dues of the petitioner.

10. In light of the above, the present writ petition is allowed and the impugned order dated 9.8.2023 is quashed to the extent that the respondents have denied certain payment of commutation of pension, gratuity, leave encashment and GIS to the petitioner. Accordingly, respondents are directed to release the amount which has been withheld on passing of impugned order, expeditiously within a period of two months and no more from the date of production of certified copy of this order. Order Date :- 29.1.2025 RKM. (Alok Mathur,J.) RAKESH KUMAR MAURYA High Court of Judicature at Allahabad, Lucknow Bench

1. Heard learned counsel for the petitioner and learned Standing Counsel for the State-respondents.

2. The present petition has been filed for the following reliefs: "I issue a writ order or direction in the nature of Certiorari, thereby quashing the impugned order 09.08.2023 Patrank 1373-74/Sa.Ka./Stha.- 4/2023-24 contained as ANNEXURE No.1 issued by the opposite party no.2 to the extent through which the order has been passed not to pay the leave encashment and retiral dues of the petitioner, in the interest of justice. II issue a writ order or direction in the nature of Mandamus, thereby commanding the opposite parties especially opposite party no.2 to release the leave encashment for 300 days along with the interest @ 14 % till the actual payment is made to the petitioner. III Issue a writ order or direction in the nature of Mandamus thereby commanding the opposite parties specially opposite party no.5 to correct the date of appointment of the petitioner as 03.05.1986 at the place of 01.01.1994 in the relevant record and further be pleased to direct the opposite parties to refix the pensionary benefit as well as other benefit payable to the petitioner according to correct date of appointment i.e. 03.05.1986, in the interest of justice. IV. Issue a writ order or direction in the nature of Mandamus, thereby directing the opposite parties to take payment of pension as well as other benefits as already has been getting the petitioner, in the interest of justice during the pendency of the writ petition. V. Issue a writ order or direction in the nature of Mandamus, by restraining the opposite parties not to give any effect to the petitioner, in the interest of justice. VI. issue any other writ, order or direction which this Hon'ble Court may being just and necessary in the facts and circumstances of the case may also be passed; and to allow this writ petition with costs."

3. Learned counsel for the petitioner has submitted that the petitioner was initially appointed on the post of Village Development Officer on ad-hoc basis on 3.5.1986 by District Magistrate, District Kheri. Subsequently his services has been regularized from 1.1.1994. Later he was promoted to the post of Assistant Development Officer (Sa.Ka.) with pay scale of 52000-2022 plus grade pay Rs.2800/- vide order dated 17.10.2017. It is further submitted that the petitioner has retired on 28.2.2023 after attaining the age of superannuation. It is further submitted that by the impugned order dated 9.8.2023 after considering the regular services of the petitioner the opposite party no.2 has paid gratuity and pensionary benefits and on the other hand, denying the pay leave encashment saying that the petitioner's appointment on ad - hoc basis which is not sustainable. The opposite party No.2 after competition of 8 years' services from the date of appointment on 1.3.1995 provided Selection Grade Pay Rs.30/- as additional pay and at the time of retirement wrongly counted the services of the petitioner from 1.1.1994 from the date of regularization.

4. It is in the aforesaid circumstances this Court has to consider the prayer made by the petitioner in the present petition, which is for a direction to the respondents to release the amount of gratuity, leave encashment, commutation of pension and GIS in favour of the petitioner. It is also noticed that pension is paid to the petitioner on his superannuation. In Article 351A of the Civil Service Regulations, it is provided that the Governor has a right to withhold or withdraw pension or ordering recovery from pension, only when a Government servant is found to be guilty of having caused pecuniary loss in departmental or judicial proceedings. From the aforesaid it is clear that such a right of withholding or making any recovery has to be exercised only on conclusion of departmental proceedings. The same points are also mentioned in Article 919A of the said regulations.

5. For the reference, the abovementioned Articles are as follows: "351-A. The Governor reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if the pensioner is found in departmental or judicial proceedings to have been guilty of grave misconduct, or to have caused pecuniary loss to Government by misconduct or negligence, during his service, including service rendered on re-employment after retirement: Provided that- (a) such departmental proceedings, if not instituted while the officer was on duty either before retirement or during reemployment- (i) shall not be instituted save with the sanction of the Governor. (ii) shall be in respect of an event which took place not more than four years before the institution of such proceeding; and (iii) shall be conducted by such authority and in such place or places as the Governor may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made. (b) Judicial proceedings, if not instituted while the officer was on duty either before retirement or during re-employment, shall have been instituted in accordance with sub-clause (ii) of clause (a); and (c) the Public Service Commission, U.P. shall be consulted before final orders are passed. [Provided further that of the order passed by the Governor relates to a cash dealt with under the Uttar Pradesh Disciplinary Proceedings, (Administrative Tribunal) Rules, 1947, it shall not be necessary to consult Public Service Commission]. Explanation-For the purposes of this article- (a) Departmental proceeding shall be deemed to have been instituted when the charges framed against the pensioner are issued to him or, if the officer has been placed under suspension from an earlier date, on such date; and (b) judicial proceedings shall be deemed to have been instituted: (i) in the case of criminal proceedings, on the date on which complaint is made, or a charge-sheet is submitted, to a criminal court; and (ii) in the case of civil proceedings, on the date on which the plaint is presented or, as the case may be, an application is made to Civil court Note- As soon as proceedings of the nature referred to in this article are instituted the authority which institutes such proceedings shall without delay intimate the fact to the Audit Officer concerned. 919-A. (1) In case referred to in Article 351-AA the Head of Department authorize the provisional pension equal to the maximum pension which would have been admissible on the basis of qualifying service up to the date of retirement of the Government servant or if he was under suspension on the date and retirement up to the date immediately preceding the date on which he was placed under suspension. (2) The provisional pension shall be authorized for the period commencing from the date of retirement up to and including the date on which after conclusion of departmental or judicial proceeding or the enquiry by the administrative Tribunal; as the case may be, final orders are passed by the competent authority. (3) No death-cum-retirement gratuity shall be paid to the Government servant until the conclusion of the departmental proceedings, judicial proceedings or the enquiry by the Administrative Tribunal and issue of final orders thereon. (4) Payment of provisional pension made under clause (1) above shall be adjusted against final retirement benefits sanctioned to such Government servant upon conclusion of the proceeding or enquiry referred to in clause (3) but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or withheld either permanently or for special period."

6. The interpretation of rules stopping post retiring dues, have to be strictly construed. Undoubtedly, Articles 351A as well as 919A would enable the respondents to withhold the payment of pension and other post retiral dues but the same is subjected to a condition that the judicial proceeding should be pending on the date of superannuation of the delinquent Government servant.

7. This Court is, thus, of the considered view that the stage for exercise of powers having impact on pension arises only upon conclusion of the proceedings. Legal principles in this regard have been enunciated by a Full Bench decision of this Court in the case of Shiva Gopal V. State of UP reported in 2019 (5) ADJ (441) (FB). Relevant part of the aforesaid judgment is a under: "78. In view of the foregoing discussions, we arrive at the following conclusions: (i) Future good conduct is implied condition of ever grant of pension. Full pension is not to be given as a matter of course, or unless the service rendered has been thoroughly satisfactory. (Article 351/351-A) (ii) Article 351 and/or 351-A can be invoked by the State Government or the Governor, as the case may be, if the pensioner (a) be convicted of serious crime; (b) be guilty of grave misconduct (c) caused pecuniary loss to the government in service. The power can be exercised in either of the eventualities. The action thereunder is punitive. (iii) Pendency of disciplinary/judicial proceedings on the date of retirement, or instituted after retirement, provisional pension equal to maximum pension as mandated under Article 919-A may be sanctioned to the government servant for the period upto conclusion of the proceedings. (Article 351-AA/Article 919-A(1)/(2)) (iv) No gratuity is payable to the government servant during pendency of disciplinary/judicial proceedings/enquiry by Administrative Tribunal, until conclusion of the proceedings/enquiry and orders being passed thereon by the competent authority. [Article 919 A(3)] (v) The Regulations mandates that government servant is entitled to provisional pension equal to maximum pension during pendency of the proceedings until conclusion. The Regulations does not mandate the entitlement of full pension/gratuity on the ground of 'hardship' being faced by the pensioner pending proceedings. (vi) The nature of the charge/allegations against the government servant cannot be gone into during pendency of the proceedings. The government servant whether guilty of 'serious crime' and/or 'grave misconduct' in the opinion of the competent authority can be assessed/considered while passing final orders upon conclusion of the disciplinary/judicial proceedings. (vii) On combined reading of Article 351, 351-A, 351-AA and 919-A, the impact on pension/gratuity would arise after the competent authority has had the occasion to consider and issue final orders upon conclusion of the proceedings. The cause to the government servant arises thereafter and not at the stage pending proceedings/ enquiry."

8. Accordingly, this Court is of the considered view that in case, judicial proceedings were not pending on the date of superannuation of a delinquent Government servant, then he would be entitled to the get post retiral dues and the respondents cannot take assistance and invoke the provisions of Articles 351A and 919A of the Civil Service Regulations to withhold the post retiral dues of such a delinquent Government Servant. Hence, I find that there is no justification from the respondents for declining the payment of the post retiral dues to the petitioner as the disciplinary proceedings had concluded and the criminal trial had not commenced.

9. I have also perused the Government Order dated 28.10.1980 which provides that at the time of superannuation of the Government servant if any judicial proceeding or vigilance inquiry, etc., are pending then final pension and the amount of gratuity cannot be paid to him. Thus, the provisions of Government Order dated 28.10.1980 will not enable the respondents to withhold the post retiral dues of the petitioner inasmuch as on the date of his superannuation, neither any judicial proceeding nor any matter before the Administrative Tribunal or vigilance inquiry was pending against the petitioner. I also do not find any government order according to which, even if a SIT or the investigation of the police is pending which may enable the respondents to withhold post retiral dues of the petitioner.

10. In light of the above, the present writ petition is allowed and the impugned order dated 9.8.2023 is quashed to the extent that the respondents have denied certain payment of commutation of pension, gratuity, leave encashment and GIS to the petitioner. Accordingly, respondents are directed to release the amount which has been withheld on passing of impugned order, expeditiously within a period of two months and no more from the date of production of certified copy of this order. Order Date :- 29.1.2025 RKM. (Alok Mathur,J.) RAKESH KUMAR MAURYA High Court of Judicature at Allahabad, Lucknow Bench