B.Rajendra, vs The State Of Andhra Pradesh
2021 Latest Caselaw 2234 AP

                                   1




       HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
              WRIT PETITION No.11232 OF 2021

ORDER:

Heard the learned counsel for the petitioner and the

learned Government Pleader for Services.

The prayer in the Writ Petition is as follows:

"....to issue a Writ Order or Direction more particularly one in the nature of Writ of Mandamus and declare the action of the respondents in not releasing the Encashment of Earned Leave amount and 80% Gratuity on pendency of C.C.No.5 of 2020, ACB Court, Rajahmundry, in terms of 2nd proviso of Rule 52 (C) Revised Pension Rules 1980, and G.O. Rt.No.1097 Finance and Planning (FW Pen.I) Department, Dated 22.06.2000, as illegal, arbitrary, discriminatory, consequently direct the respondents to release Encashment of Earned Leave amount along with 80% of Retirement Gratuity of the petitioner, pending the Charge Sheet in C.C.No.5 of 2020, in term of Similar Orders passed in W.P.No.30443 of 2016, dated 14.02.2017 and W.P.No.2545 of 2020, dated 24.02.2020 and W.P.No.3421 of 2021, dated 19.03.2021 and W.P.No.8222 of 2021, dated 15.04.2021 and pass such other order or orders may deem fit and proper in the circumstances of the case."

Learned counsel for the petitioner argues that the

petitioner is entitled to the relief claimed for, particularly in

view of the amendment to Rule 52 of the Andhra Pradesh

Pension Rules, (in short "the Pension Rules") by which a

proviso has been added. Apart from that he also relies upon

the earlier judgments of this Court passed in similar

circumstances, which are annexed to this Writ Petition as

material papers. On the basis of this learned counsel argues

that the allegation against the petitioner is that he demanded a

bribe and was therefore charge sheeted by the State.

According to the learned counsel there is no question of any

recovery being made, in such a case either drawing pension or

drawing the other dues payable to the petitioner cannot be

stopped by virtue of said allegations / charge sheet. Therefore,

he urges the amended proviso to Rule 51 of the Pension Rules

is clearly applicable and appropriate orders should be passed.

Learned Government Pleader on the other hand argues

in line with what is stated in the counter affidavit. He

particularly draws the attention of this Court to paragraphs 4

and 11 of his counter affidavit and argues that in view of the

pendency of the ACB case the petitioner is not entitled to any

relief. It is his contention that the conclusion and the outcome

of the ACB case cannot be predicted and therefore granting of

any monitory relief to the petitioner at this stage is not correct

and it should only be granted depending upon the final result

of the case. Therefore, he urges that this Writ Petition does

not have merits and it should be, therefore, dismissed.

This Court after hearing both the learned counsel notices

that proviso has been added on 10.10.1995 to the Andhra

Pradesh Pension Code, 1952, wherein it is said that

notwithstanding anything contained in Clauses (a) (b) and (c)

of Sub Rule 1 of Rule 52 of the Pension Rules, where a portion

of pension should be withheld or withdrawn and the

retirement gratuity remains unaffected in the contemplated

final orders, the retirement gratuity can be released upto 80%.

Hence in the opinion of the Court 80% of the retirement

gratuity can be released as no recovery per se is likely to

occur. Even otherwise, this Court also notices that the learned

single Judge of this Court passed a detailed order in

W.P.No.3421 of 20212, wherein the encashment of E.L. etc.,

and 80% of the retirement gratuity were allowed. The second

provision to Rule 52 (c) of the revised pension rules was also

considered. There is no dispute about the judgments which

are relied upon by the learned counsel for the petitioner and

the State did not point out that they are a bad law or that the

same were overruled or modified.

In that view of the matter, this Court is of the opinion

that the petitioner has made out a case for grant of an order

both on fact and law. Accordingly, the Writ Petition is allowed

and there shall be a direction to the respondents to release the

Earned Leave amount and 80% of the retirement gratuity,

(notwithstanding the pendency of C.C.No.5 of 2020 on the file

of the ACB Court, Rajahmundry) within six weeks of receipt of

a copy of this Order. There shall be no order as to costs.

Consequently, miscellaneous applications, pending if

any, shall stand closed.

__________________________ D.V.S.S.SOMAYAJULU, J Date:01.07.2021.

Ssv