Court No. - 29
Case :- SPECIAL APPEAL DEFECTIVE No. - 596 of 2021 Appellant :- Jagdish Respondent :- State of U.P. and Another Counsel for Appellant :- Pramod Kumar Sahani,Chhaya Gupta,Sujeet Kumar Counsel for Respondent :- C.S.C.
Hon'ble Munishwar Nath Bhandari,Acting Chief Justice Hon'ble Anil Kumar Ojha,J.
Exemption application is allowed.
The appellant is exempted from filing certified copy of the impugned judgment and order dated 14.07.2021 passed by the learned Single Judge.
Heard learned counsel for the parties.
By this appeal, challenge is made to the judgment dated 14.07.2021 whereby the writ petition preferred by the petitioner was dismissed.
The writ petition was filed to seek a direction for payment of gratuity withheld by the respondents in pursuant to Case Crime Nos. 436 of 2012 and 187 of 2012. Learned Single Judge dismissed the writ petition after relying on the judgment of a Larger Bench in the case of 'Shivgopal vs. State of U.P. and others', 2019 SCC Online All 2239.
Learned counsel for the appellant submits that the present appeal is pressed to seek benefit of pension. It is submitted that the judgment of the Larger Bench in the case of Shivgopal (supra) supports him. Denial can be of death cum retiral gratuity and not of the pension. To fortify his arguments, reference of page 38 of the judgment in the case of Shivgopal (supra) has been given. Learned counsel for the appellant has further made reference of the judgment of the Apex Court in the case of 'State of Jharkhand and Ors. Vs. Jitendra Kumar Srivastava and Anr.', Civil Appeal No. 6770 of 2013 decided on 14.08.2013.
We have considered the submissions of learned counsel for the appellant and perused the record.
It is not in dispute that one criminal case is pending against the appellant in pursuant to which he has been granted provisional pension which is now equivalent to the full pension. It is pursuant to Regulations 351-AA and 919-A of Civil Service Regulations. Both the provisions are quoted hereunder:
"Regulation 351-AA. In the case of a Government Servant who retires on attaining the age of superannuation or otherwise and against whom any departmental or Judicial proceedings or any enquiry by Administrative Tribunal is pending on the date of retirement or is to be instituted after retirement a provisional pension as provided in Regulation 919-A may be sanctioned."
"Regulation 919-A. (1) In case referred to in Regulation 351-AA the Head of Department may authorise the provisional pension equal to the maximum pension which would have been admissible on the basis of qualifying service upto the date of retirement of the Government servant or if he was under suspension on the date of retirement upto the date immediately preceding the date on which he was placed under suspension.
(2) The provisional pension shall be authorised for the period commencing from the date of retirement upto 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 or 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 proceedings 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."
Rule 351-AA provides for provision of pension pending judicial proceeding and Rule 919-A (2) authorizes provisional pension from the date of retirement till conclusion of judicial or departmental proceedings. In the light of the aforesaid provision, petitioner is being paid provisional pension because judicial proceeding has not yet been concluded so as to pass order under Regulation 351- AA.
The Larger Bench of this Court in the case of Shivgopal (supra) has referred to those provisions and found no conflict between Regulations 351-AA and 919-A with other provisions. The grant of provisional pension to the petitioner is pursuant to the Regulations referred to above. Thus, we do not find any illegality in the judgment of the learned Single Judge.
The present appeal has been pressed by the appellant only for grant of pensionary benefit despite the fact that he is getting provisional pension pursuant to Regulations 351-AA an Rule 919-A of the Rules.
Accordingly, the appeal fails and is dismissed.
Order Date :- 24.8.2021 Madhurima (Anil Kumar Ojha, J.) (Munishwar Nath Bhandari, ACJ)