Gauhati High Court
Md. Mukibul Islam vs The State Of Assam And 3 Ors on 30 November, 2023
Author: Soumitra Saikia
Bench: Soumitra Saikia
Page No.# 1/20
GAHC010112862013
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2235/2013
MD. MUKIBUL ISLAM
S/O LATE KHAIRUL ISLAM, R/O ABHAYPUR, MORAN, DIST- DIBRUGARH
VERSUS
THE STATE OF ASSAM AND 3 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM, ANIMAL HUSBANDARY and VETERINARY DEPTT., DISPUR,
GHY-6
2:THE DIRECTOR
ANIMAL HUSBANDRY and VETERINARY DEPTT.
CHENIKUTHI
GUWAHATI
3:THE JT. LEGAL REMEMBRANCER
ASSAM
JUDICIAL DEPARTMENT
DISPUR
GHY-6
4:THE ACCOUNTANT GENERAL
ASSAM PENSION
MAIDAM GAON
BELTOLA
GHY-2
Advocate for the Petitioner : MR.F ISLAM
Advocate for the Respondent : MR.C BARUAH
Page No.# 2/20
BEFORE
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
Date of Hearing & Judgment : 30.11.2023
Judgment and Order (Oral)
Heard Mr. S. Chakraborty, learned counsel for the petitioner. Also heard Mr.
C.S. Hazarika, learned Government Advocate, Assam for the respondent no.1,
Mr. M.M. Kataky, learned Standing Counsel, Animal Husbandry & Veterinary
Department, and Mr. M. Ahmed, learned counsel for the respondent no.4.
2] This writ petition is filed by the petitioner seeking a direction from this
Court to the respondent authorities for release of his pension and other retiral
benefits due to him. The petitioner was appointed to the post of Lower Division
Assistant-cum-Typist under the Animal Husbandry and Veterinary Department.
He was subsequently promoted and he superannuated from his service on
31.05.2004.
3] During his service period, certain criminal proceedings were initiated
against the petitioner, whereby the petitioner was convicted and sentenced to
suffer rigorous imprisonment (R.I) for 2 (two) years and a fine of Rs.20,000/- in
default rigorous imprisonment for another 2 (two) months for offence under
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Section 120 B IPC. The petitioner was further sentenced to suffer R.I for 5 (five)
years and a fine of Rs.50,000/- in default RI for 4 (four) months for offence
under Section 420 IPC and suffer R.I. for 5 (five) years and a fine of
Rs.50,000/- in default R.I. for another 4 (four) months under Section 13 (2)
read with Section 13 (1), (d) P.C. Act, 1988. All the sentences were to run
concurrently.
Pursuant there to, the petitioner filed an appeal before this Court being
Criminal Appeal no. 15 of 2007. During the pendency of the criminal appeal,
upon completion of his sentence and on payment of fine, the petitioner was
released from jail on 10.09.2010. Thereafter, upon making necessary enquiries,
he came to be informed that his provisional pension was stopped with effect
from 01.06.2007 onwards without serving him any formal order or issuance of
any show-cause notice from the Department. The learned counsel for the
petitioner submits that pursuant to his superannuation on 31.05.2004 he was
paid provisional pension with effect from 01.06.2004 to 31.05.2007. The
petitioner represented before the authorities requesting for release of his
regular pension by the representation dated 29.09.2010, which has been
pending before the Directorate of A.H & V. Department. However, in spite of
representation being made before the authorities, his prayer for grant of
pensionary benefits have not yielded any result and the petitioner has been
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deprived of his pensionary benefits as well as other retirement benefits. Learned
counsel for the petitioner referring to Rule 21 of the Assam Services (Pension)
Rules of 1969 submits that it is the Governor of the State who reserves the right
to himself for withholding or withdrawing of any pension or any part thereof.
Learned counsel for the petitioner submits that there is a proper procedure
prescribed under Rule 21 of the Pension Rules of 1969 and this Rule 21 of the
Pension Rules of 1969 specifically provides that it is the Governor of the State to
whom the right of withholding or withdrawing of any pension is reserved.
Learned counsel for the petitioner submits that as on date, no specific order for
withholding or withdrawing the pension has been passed by the Departmental
authorities in terms of Rule 21 of the pension. He submits that because of sheer
neglect of the Department to address this issue, the petitioner has been
deprived of his right to have the pension as prescribed under the Pension Rules
of 1969. Notwithstanding that the petitioner has been convicted in a criminal
case and subsequently, the petitioner has served his sentence and the Criminal
Appeal no. 15 of 2007 pending before this Court has also been dismissed, and
therefore, there is no occasion for the respondent authorities not to release his
pension, more particularly, when there is no specific order passed by the
Department. Learned counsel for the petitioner has relied upon the judgment of
this Court passed in Jyotish Chandra Pathak vs. State of Assam reported in
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2006 (2) GLR 430 whereby the observation was made that under Rule 21 of the
Pension Rules of 1969 it is the Governor who is empowered to withhold the
pension of any employee.
4] By filing an additional affidavit-in-opposition, Ms. M.M. Kataky, learned
Standing Counsel, AH&V Department submits that an opinion of the judicial
department was obtained and pursuant thereto the proposal for withdrawal of
pension of the petitioner has been submitted before the competent authority.
However, no specific order is available in the records to be placed before the
Court. In the affidavit-in-opposition 2 (two) communications are referred to by
the learned Standing Counsel, namely, communication dated 23.02.2010 and
12.10.2012 pursuant whereto the provisional pension of the petitioner has been
stopped.
5] Learned counsel for the parties have been heard and pleadings in the
records have been perused.
6] It is seen that during the course of the hearing by order dated 23.11.2023,
a direction was issued to the learned Standing Counsel, Veterinary Department
to produce the relevant records to show the orders that may have been passed
for stoppage of withdrawal of pension of the petitioner. In pursuance to that
order, the learned Standing Counsel for the Department has produced the
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records of the case. Upon careful perusal of the records, no specific order has
been seen whereby it was directed to hold the pension of the petitioner. What is
seen is that a proposal for stoppage of pension of the petitioner was forwarded
by a communication dated 16.05.2013 for necessary approval of the
Government as well as approval of the APSC as required under Rule 21 of the
Pension Rules of 1969 . However, pursuant to this proposal, no specific orders
are seen in the file to show that the Department had considered the issue and
passed the necessary orders as required for stoppage or withdrawal of the
pension in respect of the writ petitioner.
7] Upon considering the rival submissions of the parties and upon due perusal
of the pleadings on record, the mandate of Rule 21 under the Assam Services
(Pension) Rules of 1969 is required to be referred to. Rule 21 of the Pension
Rules of 1969 is quoted below:
21. The Governor of Assam 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, in a departmental or judicial proceedings, the pensioner is found guilty of grave
misconduct or negligence during the period of his service, including service rendered upon re-
employment after retirement provided that-
(a) such departmental proceeding, if instituted while the officer was in service,
whether before his retirement or during his re-employment, shall, after the final retirement of
the officer, be deemed to be a proceeding under this rule and shall be continued and concluded
Page No.# 7/20
by the authority by which it was commenced in the same manner as if the officer had continued
in service;
Explanation- The continuation of the proceeding after the final retirement of the officer
shall be automatic under sub-rule (a) of Rule 21 and no fresh decision of the Governor and/or
the Appointing authority nor any show-cause notice to the person concerned shall be necessary.
The powers under rule 21 shall be exerciseable not only in case of causing pecuniary
loss to Government but also in all other cases"];
(b) such departmental proceeding, if not instituted while the officer was in service,
whether before his retirement or during his re-employment-
(i) shall not be instituted save with the sanction of the governor of Assam;
(ii) shall not be in respect of any event which took place more than 4 years before such
institution; and
(iii) shall be conducted by such authority and in such place as the Governor of Assam
may direct and in accordance with procedure applicable to departmental proceedings in which
an order of dismissal from service could be made in relation to the officer during his service;
(c) no such judicial proceeding, if not instituted while the officer was in service, whether
before his retirement or during his re-employment, shall be instituted in respect of a cause of
action which arose or an event which took place more than 4 years before such institution; and
(d) the Assam Public Service Commission shall be consulted before final orders are
passed."
8] A bare perusal of the rules clearly reveals that Rule 21 an employee's
pension can be withdrawn or stopped. It is categorically specified in Rule 21
that the power for withdrawal or stoppage of pension is preserved only for the
Governor of the State, namely, the Governor of Assam in the context of the
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present proceedings. The Rule 21 does not provide for any exception for
issuance of any orders for stoppage of or withdrawal of pension. The powers of
the Governor are well defined under the provisions of Article 163 of the
Constitution of India. Under Article 163 of the Constitution of India, the
Governor of the State reserves certain functions, as such, pass or issue orders
and there are other matters where the Governor is required to take into account
and pass necessary orders only on the aid and advice of the Council of Ministers
of the State.
9] Be that as it may, upon taking into consideration the rival submissions and
also upon careful perusal of the records, it is seen that as on date there is no
order either by the Department or by the Governor under Rule 21 whereby this
pension or provisional pension of the petitioner has been stopped or withdrawn.
Under such circumstances, the Department is not able to support their stand as
to under what provisions the pension of the petitioner has been stopped. No
order to the effect is available in the records of the Department or on the
pleadings filed on behalf of the Department. There is no order as mandated
under Rule 21 that has been passed by the Governor or by any other
appropriate authority in the name of the Governor for withdrawal or stoppage of
the pension. As discussed, what is seen is that a proposal has been forwarded
by the Director of the Department by its letter dated 16.05.2013 for taking
Page No.# 9/20
necessary action in respect of stopping of the pension on which it appears that
no specific orders have been passed.
10] In these peculiar facts and circumstances, this Court has to arrive at the
conclusion that the stoppage of pension or stoppage of withdrawal of pension of
the petitioner has been done contrary to the prescriptions of the Rules of the
1969. In fact, there is no specific order available or issued by the Department as
on date for stoppage of pension of the petitioner. Such action cannot be allowed
to be sustained in view of specific provisions under the Assam Services
(Pension) Rules of 1969.
11] The coordinate Bench of this court in Hari Nath vs State of Assam & Ors.
reported in 2005 (Suppl) GLT 903 made an observation to deal with a similar
issue explaining the powers of Governor under Rule 21 of the Rules, which is
relied upon by the learned Counsel for the petitioner. It has been repeatedly
held by this Court as well as by the Apex Court that pension is not a bounty, it
is a right include under a specific statute made under the Assam Services
(Pension) Rules. The grant or withdrawal or stoppage of pension of any
government employee must be restricted under the prescription of the Rules
under the statute.
12] The Assam Services (Pension) Rules of 1969 was framed under the power
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conferred under the proviso to Article 309 of the Constitution of India and in
supersession to the Rules in the Assam Pension Manual, 1939. These were
published in the Assam Gazette dated 1 st October, 1969. These Rules
elaborately prescribes the provisions for grant of pension to government
employees where applicable. Under Rule 9 of the said Rules, it is provided that
the term " pension", unless used in contradistinction to gratuity, " pension",
includes gratuity and debt-cum- retirement gratuity. For a government servant
who is eligible for pension, three conditions are prescribed under Rule 31.
(i) The service must be under the Government;
(ii). Employment must be substantive and permanent; and
(iii) The service must be paid by the Government.
Insofar as the petitioner is concerned, there is no dispute that the petitioner
is eligible for pension under the criteria prescribed under Rule 31 of the Pension
Rules of 1969 and pension includes gratuity and death-cum-retirement gratuity
as prescribed under Rule 9 of the same.
13] In celebrated judgment of the Apex Court rendered in Deokinandan
Prasad vs. The State of Bihar & Ors. reported in 1971 (2) SCC 330, the
Constitution Bench of the Apex Court authoritatively held that the payment of
pension does not depend upon the discretion of the State. The payment of
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pension is governed by the rules and the government servant coming within the
Rules is entitled to claim pension. The Apex Court went on to hold that the right
to receive pension by a government servant is property within goods so as to
attract Article 19 (1)(f) and 31(1) of the Constitution of India. Referring to the
judgments rendered in Bhagwant Singh vs Union of India referring to the
judgment of the Punjab High Court in Bhagawan Singh, AIR 1962 Punj 503
as well as K.R. Erry vs. State of Punjab, ILR 1967 Punj & Har 278 and also
State of M.P. vs. Ranojirao Shinde reported in AIR 1968 SC 1C53, the Apex
Court had expressed its opinion that the right of the petitioner to receive
pension is property under Article 31 of the Constitution and by mere executive
order the State has no power to withhold the same. The claim of an employee
to receive pension is property under Article 19 (1) (f) and it is not saved by sub
article (5) of Article 19. The paragraphs 16, 33 of Deokinandan Prasad are
quoted herein below:
"......
16. We are not inclined to accept the contention of Mr. Jha that no fundamental rights of
the petitioner are affected by passing the order dated June 12, 1968. 'We will refer to the
relevant Pension Rules bearing on the matter and also certain decisions. In our opinion, the
right to get pension is "property" and by withholding the same, the petitioner's fundamental
rights guaranteed under Arts. 19(1)(f) and 31(1) are affected. As the matter is being
discussed more fully in the latter part of the judgment, it is enough to state at this stage that
the writ petition is maintainable. Even according to the respondents the order dated June 12,
1968 has no independent existence and that order has been passed on the basis of the earlier
order dated August 5, 1966. In our opinion, if the order dated August 5, 1966 cannot be
sustained, it will follow that the order dated June 12, 1968 will also fall to the ground. Hence
we will deal, in the first instance, with the validity of the order dated August 5, 1966. The full
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text of the order dated August 5, 1966 passed by the Director of Public Instruction, Bihar, is
as follows:
"Number-7 / 07 / 60 Edn. 3791
Sri Devaki Nandan Prasad, Sub-Inspector of Schools, Deoghhar, having not been on his duties
for more than 5 years since 1-3-60 has ceased to be in Government employ since 2-3-65 under
rule 76 of the Bihar Service Code.
(Sd.) K. Ahmed
Director of Public Instruction
Bihar.
Memo No. 3791 Patna, dated 5th August, 1966. Copy forwarded to Sri Devaki Nandan
Prasad, New Yarpur, Patna for information."
Rule 76 of the Service Code reads as follows:
"Unless the State Government, in view of the special circumstances of the case shall otherwise
determine, A Government servant after five years of continuous absence from duty, elsewhere
than on foreign service in India, whether with or without leave, ceases to be in Government
employ."
The essential requirement for taking action under the said rule is that the government
servant should have been Continuously absent from duty for over five years. Under this rule it
is immaterial whether absence from duty by the government servant was with or without
leave so long as it is established that he was absent from duty for a continuous period for
over five years. We are referring to this aspect because it is the case of the petitioner that he
availed himself of leave with effect from March 11, 1960 and he left the headquarters after
obtaining the necessary sanction from his superior officers. On the other hand, it is the case of
the respondents that the petitioner merely putting in an application for leave from March 11,
1960 left the headquarters without obtaining the prior permission of the superiors. It is not
necessary for us to deal with this controversy, as under the rules absence for the period stated
therein, either with or without leave, are both treated on the same basis.
........
33. Having due regard to the above decisions, we are of the opinion that the right of the
petitioner to receive pension is property under Art. 3 1 (1) and by a mere executive order the
State had no power to withhold the same. Similarly, the said claim is also property under Art.
19(1)(f) and it is not saved by sub-article (5) of Art. 19. Therefore, it follows that the order
dated June 12, 1968 denying the petitioner fight to receive pension affects the fundamental
right of the petitioner under Arts. 19(1)(f) and 31(1) of the Constitution, and as such the writ
petition under Art. 32 is maintainable. It may be that under the Pension Act (Act 23 of 1871)
there is a bar against a civil court entertaining any suit relating to the matters mentioned
therein. That does not stand in the way of a Writ of Mandamus being issued to the State to
properly consider the claim of the petitioner for payment of pension according to law.
14] This judgment was again referred to in D.S. Nakara & Ors. Vs. Union of
India reported in (1983) 1 SCC 305. The Apex Court in D.S. Nakara reiterated
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the law laid down in its earlier judgment i.e. Deokinandan Prasad (supra) and
held that the notion of pension being a bounty or a gratuitous payment
depending upon the sweet will or the grace of the employer and cannot be
claimed as a matter of right and it was held that pension is a right and the
payment thereof does not depend upon the discretion of the government but is
governed by the Rules and a government servant coming within those Rules is
entitled to claim pension. It was further held that the grant of pension does not
depend upon anyone's discretion. The Apex Court upon examining the goals
that the pension scheme seeks to subserve, held that the pension payable to a
government servant is earned by rendering long and efficient service and
therefore, can be said to be a deferred portion of the compensation or for
service render. The Apex Court held that the most practical raison d'etre for
pension is the inability to provide for oneself due to old age. It was observed
that one may live and avoid unemployment but not senility and penury if there
is nothing to fall back upon. The Apex Court upon due examination held that the
pension is neither a bounty not a matter of grace depending upon the sweet will
of the employer. It creates a vested right subject to the pension rules, which are
statutory in nature because they are enacted in exercise of the powers
conferred by the proviso to Article 309 and Clause 5 of the article 148 of the
Constitution. It was held by the Apex Court that pension is not an ex-gratia
Page No.# 14/20
payment, but it is a payment for the past services rendered and it is a social
welfare measure rendering socio-economic justice to those who in the hey-day
of their life ceaselessly toiled for the employer on an assurance that in their old
age they would not be left in lurch. The relevant paragraph i.e. paragraph 20,
26, 27, 28, 29 & 31 of this celebrated judgment of the Apex Court are quoted
herein below:
.....
20. The antiquated notion of pension being a bounty a gratituous payment depending upon the
sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be
enforced through Court has been swept under the carpet by the decision of the Constitution Bench in
Deoki Nandan Prasad v. State of Bihar & Ors. (1) wherein this Court authoritatively ruled that pension
is a right and the payment of it does not depend upon the discretion of the Government but is governed
by the rules and a Government servant coming within those rules is entitled to claim pension. It was
further held that the grant of pension does not depend upon any one's discretion. It is only for the
purpose of quantifying the amount having regard to service and other allied matters that it may be
necessary for the authority to pass an order to that effect but the right to receive pension flows to the
officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of
Punjab & Anr. v. Iqbal Singh (1).
....
26. Let us therefore examine what are the goals that pension scheme seeks to subserve ? A
pension scheme consistent with available resources must provide that the pensioner would be able to
live: (i) free from want, with decency, independence and self-respect, and (ii) at a standard equivalent
at the pre-retirement level. This approach may merit the criticism that if a developing country like India
cannot provide an employee while rendering service a living wage, how can one be assured of it in
retirement ? This can be aptly illustrated by a small illustration. A man with a broken arm asked his
doctor whether he will be able to play the piano after the cast is removed. When assured that he will,
the patient replied, 'that is funny, I could not before'. It appears that determining the minimum amount
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required for living decently is difficult, selecting the percentage representing the proper ratio between
earnings and the retirement income is harder. But it is imperative to note that as self- sufficiency
declines the need for his attendance or institutional care grows. Many are literally surviving now than
in the past. We owe it to them and ourselves that they live, not merely exist. The philosophy prevailing
in a given society at various stages of its development profoundly influences its social objectives. These
objectives are in turn a determinant of a social policy. The law is one of the chief instruments whereby
the social policies are implemented and 'pension is paid according to rules which can be said to
provide social security law by which it is meant those legal mechanisms primarily concerned to ensure
the provision for the individual of a cash income adequate, when taken along with the benefits in kind
provided by other social services (such as free medical aid) to ensure for him a culturally acceptable
minimum standard of living when the normal means of doing so failed'. (see Social Security law by
Prof. Harry Calvert, p. 1).
27. Viewed in the light of the present day notions pension is a term applied to periodic
money payments to a person who retires at a certain age considered age of disability; payments usually
continue for the rest of the natural life of the recipient. The reasons underlying the grant of pension
vary from country to country and from scheme to scheme. But broadly stated they are (i) as
compensation to former members of the armed forces or their dependents for old age, disability, or
death (usually from service causes), (ii) as old age retirement or disability benefits for civilian
employees, and (iii) as social security payments for the aged, disabled, or deceased citizens made in
accordance with the rules governing social service programmes of the country. Pensions under the first
head are of great antiquity. Under the second head they have been in force in one form or another in
some countries for over a century but those coming under the third head are relatively of recent origin,
though they are of the greatest magnitude. There are other views about pensions such as charity,
paternalism, deferred pay, rewards for service rendered, or as a means or promoting general welfare
(see Encyclopaedia Britannica, Vol. 17 p.575.) But these views have become otiose.
28. Pension to civil employees of the Government and the defence personnel as
administered in India appear to be a compensation for service rendered in the past. However, as held in
Douge v. Board of Education(1) a pension is closely akin to wages in that it consists of payment
provided by an employer, is paid in consideration of past service and serves the purpose of helping the
recipient meet the expenses of living. This appears to be the nearest to our approach to pension with
the added qualification that it should ordinarily ensure freedom from undeserved want.
29. Summing-up it can be said with confidence that pension is not only compensation for
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loyal service rendered in the past, but pension also has a broader significance, in that it is a measure of
socio-economic justice which inheres economic security in the fall of life when physical and mental
prowess is ebbing corresponding to aging process and therefore, one is required to fall back on
savings. One such saving in kind is when you gave your best in the hey-day of life to your employer, in
days of invalidity, economic security by way of periodical payment is assured. The term has been
judicially defined as a stated allowance or stipend made in consideration of past service or a surrender
of rights or emoluments to one retired from service. Thus the pension payable to a Government
employee is earned by rendering long and efficient service and therefore can be said to be a deferred
portion of the compensation or for service rendered. In one sentence one can say that the most
practical raison d'etre for pension is the inability to provide for oneself due to old age. One may live
and avoid unemployment but not senility and penury if there is nothing to fall back upon.
....
30. From the discussion three things emerge : (i) that pension is neither a bounty nor a
matter of grace depending upon the sweet will of the employer and that it creates a vested right subject
to 1972 rules which are statutory in character because they are enacted in exercise of powers conferred
by the proviso to Art. 309 and clause (5) of Art. 148 of the Constitution ; (ii) that the pension is not an
ex-gratia payment but it is a payment for the past service rendered ; and (iii) it is a social welfare
measure rendering socio-economic justice to those who in the hey-day of their life ceaselessly toiled for
the employer on an assurance that in their old age they would not be left in lurch. It must also be
noticed that the quantum of pension is a certain percentage correlated to the average emoluments
drawn during last three years of service reduced to ten months under liberalised pension scheme. Its
payment is dependent upon an additional condition of impeccable behaviour even subsequent to
requirement, that is, since the cessation of the contract of service and that it can be reduced or
withdrawn as a disciplinary measure."
15] As such, it is no longer res integra that pension is not a bounty depending
on the whims and fancies to be granted to a government servant. If the
government servant satisfies the norms prescribed under the Rules, he has the
right to receive pension as per his entitlement and such right cannot be
curtailed. A bare perusal of the Pension Rules revealed that the right to withhold
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or withdraw pension or any part of it, whether permanently or for a specified
period and the right of ordering the recovery is reserved under the power of
Governor. The Governor has the right to order for recovery from a pensioner, the
whole or a part of any pecuniary loss caused to the Government if, in a
departmental or judicial proceeding, a pensioner is found guilty of grave
misconduct or negligence during the period of a Service, including the service
rendered upon reemployment after retirement, provided such departmental
proceeding was initiated before his retirement or reemployed. The Apex Court
held that a person cannot be deprived of pension without the authority of law.
The Apex Court negated the attempt of the State Government to take away a
part of pension or gratuity or even leave encashment without any statutory
provision and under the umbrage of administrative instructions. The Apex Court
held that such act cannot be countenance.
16] The judgment of Apex Court was again referred in Dr. Hira Lal vs. State
of Bihar and Ors. reported in (2020) 4 SCC 346. It was reiterated by the Apex
Court that the action of the State Government in withholding 10% of pension
and gratuity on the basis of administrative circulars and Government resolution
was unjustified. It was held in the facts and circumstances of the case that the
administrative instructions and Executive Orders were not issued in exercise of
the power under Article 309 of the Constitution and hence did not have the
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force of law.
17] In the present proceedings upon the careful perusal of the relevant records
and the pleadings and then, upon due consideration of the submissions
rendered by the counsel for the Parties, it is seen that there is no specific order
passed under Rule 21 of the Pension Rules of 1969 to withhold the provisional
pension and/or gratuity and other retiral benefits payable to the petitioner. The
Respondent Department has not been able to place any such order at least akin
to any such orders that may have been passed under Rule 21 of the Pension
Rules. The Apex Court in the judgments discussed above, has succinctly laid
down law that not only the pension but also gratuity is a property and for which
a writ of mandamus can be prayed for by the petitioner in the event of non
release of his pension, any curtailment or withholding of pension by the
employer, namely, the government, will have to be done in strict consonance
with the provisions of the statute, namely, the Pension Rules. 1969. As has been
discussed above, no such order or notification is placed before the Court to
prove that the petitioner's pension has been stopped under Rule 21 of the
Pension Rules for which specifies withholding or curtailing the pension and
gratuity payable to a government employee. The Rule 21 being very specific
that the power for withholding or curtailing the pension, or any part thereof, for
any specified period of time is reserved only for the Governor of the State. What
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is available before the Court is only a letter no.PI-5417/2013-14/1893 dated
16.05.2013, which is stated to have been forwarded to the appropriate authority
seeking withholding of the pension payable to the petitioner under Rule 21 of
the Pension Rules of 1969.
18] There is absolutely nothing on records of the Department to show that this
proposal has been accepted and an order as required under the provisions of
Rule 21 of the Pension Rules of 1969 has been issued withholding the pension
of the petitioner.
19] Until and unless an order is passed in terms of Rule 21, it is made clear
that the stoppage of pension of the petitioner or the action of the respondents
in withholding the pension of the petitioner cannot be allowed to sustain. In
view of the discussions held above and in view of the fact that no specific order
has been noticed from the records or from the pleadings issued by the
Department regarding the stoppage or withdrawal of the pension of the
petitioner, this Court is of the considered view that the prayers made in the writ
petition ought to be allowed. This Court issues a mandamus to the respondents
to process the pension papers of the petitioner and release his pensionery and
other retirement benefits including gratuity, found to be payable to the petition
after making due adjustments with the provisional pension already released to
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him and forthwith release the same to the petitioner. The respondents are
therefore directed to comply with the directions of this order within a period of
60 (sixty) days from the date of receipt of a certified copy of this order. This
direction is issued by the Court both to the Animal Husbandry & Veterinary
Department as well as to the Accountant General's Office.
20] Writ petition accordingly stands allowed in terms of the above. No order as
to cost.
JUDGE
Comparing Assistant
