# Additional Director General of P.H.Q. & Ors v. Radhey Shyam Sharma

- **Citation:** (2014) 3 ILRA 1260
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-10-14
- **Case number:** Special Appeal Defective No. 840 of 2014
- **Bench:** Dr. Dhananjay Yeshwant Chandrachud, C.J. Pradeep Kumar Singh Baghel
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/additional-director-general-of-p-h-q-ors-v-radhey-shyam-sharma-43117
- **Pages:** 5

## Headnote

Shiv Krishna Bahadur
Civil Services Regulation-Regulation 351 AA
-Withholding
pension
gratuityrespondent/petitioner
working
as
S.I.-
convicted for offence under Section 302
read with 149/364 IPC-Appeal admittedrealization of fine stayed-Single Judge
allowed the petition as no peeunary loss
caused to the government-held-Learned
Single Judge totally over sighted provisions
of Regulation 351-AA read with Regulation
919-A (3) held-government reserves its
right to with hold pension under Regulation
351-AA-direction
of
Single
Judge
not
sustainable-Appeal allowed.
Held: Para-11
However, it has been urged on behalf of
the respondent that full pensionary
benefits have been released to some of
the other accused, who were tried along
with the respondent. In view of the clear
mandate of the provisions contained in
Regulation 351-AA read with Regulation
919-A, we are of the view that such a
direction cannot be issued by this Court
supposedly on the basis of parity. In the
present case, the respondent has been
convicted of a serious crime within the
meaning
of
Regulation

## Text

1260
 INDIAN LAW REPORTS ALLAHABAD SERIES
While considering Clause (3) of Rule 8,
this Court held as under :
"Clause (3) or Rule 8 of 1991 Rules
provides for the inter se seniority of direct
recruits and promotees to be appointed on
the basis of one selection and illustrations
1 and 2 thereto provide for the manner in
which
the
direct
recruits
and
the
pro9motees are to be adjusted. Thereafter
there are three provisions (i) to (iii) to the
sub rule 3 of rule 8. However, it must be
remembered that the provisos are to be
read in a manner to suggest that
something is being carved out from the
main clause. As already noticed above,
Rule
8(3)
itself
contemplates
determination of seniority between the
pro9motees and direct recruits as a result
of any one selection, meaning thereby that
the aforesaid rule will have application
only where appointments both by direct
recruitments and promotions are being
made as a result of one selection. If
selections are made in different years,
Rule 8(3) will have no application, as a
result whereof the proviso to the aforesaid
Rule would also not apply."
39. However, the 1992 Rules as well
as applicability of rota rule seems to have
not been considered. Attention of this
Court has not been invited to any finding
with regard to applicability of rota rule
under Rule 8(8) read with the provisions
contained in 1992 Rules (supra) by
Hon'ble Supreme Court.
40. In (2005)8 SCC 454 D. Ganesh
Rao Patnaik and others versus State of
Jharkhand and others, their Lordships
interpreted the definition of cadre and
considered the right of the employees
appointed within and beyond the quota.
41. In (1996) 11 SCC 361 M.S.L.
Patil, Asstt. Conservator of Forests,
Solarpur (Maharashtra) and others versus
State of Maharashtra and others, the
question before the Supreme Court relates
to binding nature of judgment and
interpretation
of
Civil
Services
Regulations of Seniority Rules which
does not seem to be applicable in the facts
of the present case. However, their
Lordships
of
Supreme
Court
have
reiterated the principle emerging from the
case of Keshav Chandra Joshi (supra).
42. In view of above, the impugned
order passed by learned Single Judge does
not seem to suffer from any impropriety
or illegality subject to modification that
keeping in view the Service Rules in
question (supra), rota should be applied
by the authorities of direct recruits and
promotees appointed in one recruitment
year. Accordingly, the order passed by
Hon'ble Single Judge is modified to the
extent that the State shall apply rota
system to direct recruits and promotees
appointed in one recruitment year.
The appeal is allowed in part
accordingly.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.10.2014
BEFORE
THE HON'BLE DR. DHANANJAY YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.
Special Appeal Defective No. 840 of 2014
Additional Director General of P.H.Q. &
Ors.
 Appellants
Versus
Radhey Shyam Sharma
...Respondent
3 All]. Ravindra Nath Pandey (S/S 6985/2005) Vs. State of U.P.
1261
Counsel for the Appellants:
S.C.
Counsel for the Respondents:
Shiv Krishna Bahadur
Civil Services Regulation-Regulation 351 AA
-Withholding
pension
gratuityrespondent/petitioner
working
as
S.I.-
convicted for offence under Section 302
read with 149/364 IPC-Appeal admittedrealization of fine stayed-Single Judge
allowed the petition as no peeunary loss
caused to the government-held-Learned
Single Judge totally over sighted provisions
of Regulation 351-AA read with Regulation
919-A (3) held-government reserves its
right to with hold pension under Regulation
351-AA-direction
of
Single
Judge
not
sustainable-Appeal allowed.
Held: Para-11
However, it has been urged on behalf of
the respondent that full pensionary
benefits have been released to some of
the other accused, who were tried along
with the respondent. In view of the clear
mandate of the provisions contained in
Regulation 351-AA read with Regulation
919-A, we are of the view that such a
direction cannot be issued by this Court
supposedly on the basis of parity. In the
present case, the respondent has been
convicted of a serious crime within the
meaning
of
Regulation
351.
Under
Regulation 351 the Government reserves
to itself the right to withhold a pension if
the pensioner is convicted of a serious
crime. In view of the provisions of
Regulation
351-AA,
the
State
Government
was
acting
within
its
statutory powers in withholding regular
pension
and
as
provided
under
Regulation 919-A(1) provisional pension
has been released to the respondent.
Case Law discussed:
Special Appeal Defective No. 1278 of 2013
decided on 17 Dec. 2013.
(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.)
1. The special appeal arises from a
judgment and order of the learned Single
Judge dated 29 November 2013 directing
the appellants to release all the retiral
benefits of the respondent with interest at
the rate of 12% per annum including full
pensionary benefits.
2. The respondent was appointed as
a Sub Inspector in the State Police. The
respondent was committed to trial and by
a judgment of the Sessions Judge, Etah
dated 20 November 1998, he was
convicted of the offences inter alia under
Section 302 read with Section 149 and
under Section 364 of the Indian Penal
Code and was sentenced to undergo
imprisonment for life. The respondent has
filed a criminal appeal, which has been
admitted by this Court on 24 November
1998 and he has been released on bail.
Realisation of the fine imposed by the
Sessions Judge has been stayed during the
pendency of the appeal.
3. The respondent attained the age of
superannuation on 31 May 1999. A
provisional pension has been released to him
but full pensionary benefits, gratuity and
other retiral dues were withheld on the
ground that an appeal against the order of
conviction inter alia under Sections 302 and
364 of the Indian Penal Code is pending
before this Court. The respondent filed a writ
petition1, which came up for hearing before
the learned Single Judge. The learned Single
Judge was of the view that in the present case
no pecuniary loss was caused to the
department or to the Government and even
after the criminal proceeding is finalized, no
recovery
would
be
made
from
the
respondent. For this reason, the petition was
allowed with a direction for payment of full
1262
 INDIAN LAW REPORTS ALLAHABAD SERIES
pensionary benefits together with all other
retiral dues with interest at the rate of 12%
per annum.
4.
The submission, which has been
urged by the learned Standing Counsel, is
that the view which has been taken by the
learned Single Judge is directly contrary to
the provisions of Regulation 351-AA of the
Civil Service Regulations2 read with
Regulation 919-A(3). These provisions, it
was urged, have been construed in a
judgment of a Division Bench of this Court
in State of U.P. and others v. Jai Prakash3.
5. On the other hand, it has been
submitted on behalf of the respondent that
the pensionary dues have been allowed to
the other accused who were tried and
convicted with the respondent and who,
like the respondent, were engaged in the
Police Service of the State of Uttar
Pradesh. Hence, it was urged that on a
parity of reasoning, the respondent should
be granted the same benefit.
6. Regulation 351-AA of the
Regulations provides as follows:
"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."
7.

Regulation
919-A
of
the
Regulations is in the following terms:
"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."
8. Besides these two regulations,
Regulation 351 stipulates that the State
Government reserves to itself the right of
withholding or withdrawing a pension or
any part of it, if the pensioner be
convicted of serious crime or be guilty of
grave misconduct.
9. These regulations have been
construed in the judgment of the Division
of this Court in State of U.P. and others v.
3 All]. Additional Director General of PHQ & Ors. Vs. Radhey Shyam Sharma
1263
Jai Prakash (supra), rendered on 17
December 2013, where it has been held as
follows:
"Government has the power to withhold
or withdraw the pension and a power to
recover
any
pecuniary
loss
suffered.
Regulation 351-A postulates that there has to
be a determination in departmental or judicial
proceedings. Regulation 351-AA deals with a
situation where a departmental or judicial
proceeding
or
any
enquiry
by
the
Administrative Tribunal is pending on the
date of retirement or is to be instituted after
retirement in which case a provisional pension
under regulation 919-A may be sanctioned.
Where a departmental or judicial proceeding
is pending on the date of retirement,
regulation
351-AA
stipulates
that
a
provisional pension would be admissible and
the modalities for the payment of a
provisional pension are prescribed under
regulation 919-A. Regulation 919-A (1)
makes a reference to the situation which is
referred in regulation 351-AA and authorises
the payment of a provisional pension by the
Head of Department. The provisional pension
is to be authorised for the period commencing
from the date of retirement upto and including
the date of conclusion of departmental or
judicial proceedings or, as the case may be,
the enquiry by the Administrative Tribunal.
Regulation 919-A (3) contains an expression
prohibition on the payment of death-cumretirement gratuity to a government servant
until the conclusion of the departmental
proceeding, judicial proceeding or as the case
may be, an enquiry by the Administrative
Tribunal. Regulation 41 provides that except
when the term 'Pension' is used in
contradistinction to gratuity, 'Pension' would
include gratuity. Consequently, regulation 919
(3) which contains a bar on the payment of
gratuity till the conclusion of a departmental
or judicial proceeding would allow the
payment of a provisional pension stipulated in
clause (1) of regulation 919-A.
8. The learned Single Judge, in the
present case, has proceeded on the basis that
neither in regulation 351 nor in regulation
351-A is a withholding of gratuity
contemplated during the pendency of a
judicial proceeding. The learned Single
Judge, with respect, has overlooked the
provisions of regulation 351-AA and a
specific bar which is contained in regulation
919-A (3). In view of the specific
prohibition which is contained in regulation
919-A (3), no death-cum-retirement gratuity
would be admissible until the conclusion of
a departmental or judicial proceeding. The
expression 'judicial proceeding' would
necessarily include the pendency of a
criminal
case."
10. In view of the law as laid down in
the aforesaid decision, the judgment of the
learned Single Judge would, in our view, be
unsustainable.
The
clear
mandate
of
Regulation 351-AA is that in case of a
Government servant who retires on attaining
the age of superannuation or otherwise and
against whom judicial proceedings are
pending on the date of retirement or are
instituted thereafter, a provisional pension
may be sanctioned. Regulation 919-A(3)
contains a specific prohibition on the
payment of death-cum-retirement gratuity
until the conclusion of judicial proceedings.
In terms of Regulation 919-A a provisional
pension has been made admissible to the
respondent.
11.
However, it has been urged on
behalf of the respondent that full pensionary
benefits have been released to some of the
other accused, who were tried along with the
respondent. In view of the clear mandate of
the provisions contained in Regulation 351AA read with Regulation 919-A, we are of
the view that such a direction cannot be
1264
 INDIAN LAW REPORTS ALLAHABAD SERIES
issued by this Court supposedly on the basis
of parity. In the present case, the respondent
has been convicted of a serious crime within
the meaning of Regulation 351. Under
Regulation 351 the Government reserves to
itself the right to withhold a pension if the
pensioner is convicted of a serious crime. In
view of the provisions of Regulation 351AA, the State Government was acting within
its statutory powers in withholding regular
pension and as provided under Regulation
919-A(1) provisional pension has been
released to the respondent.
12. In this view of the matter, the
judgment and order of the learned Single
Judge is, with respect, erroneous. The
learned Single Judge was in error in
holding that merely because no pecuniary
loss was caused to the department or to the
Government,
no
recovery
would
be
required to be made and hence, the entire
pensionary
dues
should
be
released.
Regulation 351-A of the Regulations, which
has been noticed in the decision in State of
U.P. and others v. Jai Prakash (supra), deals
with a situation where inter alia a pensioner
is found to have caused a pecuniary loss to
the State by his misconduct or negligence
during
service.
Regulation
351
and
Regulation 351-AA of the Regulations do
not confine the power of the Government to
withhold the pensionary dues until a loss is
shown to be caused to the State.
13.
For these reasons, we allow the
special appeal and set aside the impugned
judgment and order of the learned Single
Judge dated 29 November 2013. However,
we clarify that upon the disposal of the
criminal appeal by this Court, necessary
consequences under the law shall follow
based on the outcome of the case.
14.

The
special
appeal,
is
accordingly, allowed. There shall be no
order as to costs.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.10.2014
BEFORE
THE HON'BLE DR. DHANANJAY YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.
Special Appeal Defective No. 850 of 2014
Birjesh Kumar
...Petitioner
Versus
State of U.P. & Ors.
.Respondents
Counsel for the Petitioner:
Sri B.K. Srivastava, Sri Dhiraj Srivastava
Counsel for the Respondents
C.S.C.
Constitution of India Art. 226-Service Lawtermination on conviction in criminal casewithout inquiry-without considering the
conduct of employee-in utter violation of
guide lines of Apex Court in Tulsiram Patel
case-held-disciplinary authority as well as
Single Judge
proceeded on wrongful
premises-mere conviction would not result
termination automatically-appeal allowed.
Held: Para-6
In the counter affidavit, which was filed
on behalf of the State before the learned
Single Judge, it was specifically admitted
in paragraph-8 that the appellant was
dismissed from service "on the basis of
the conviction". Hence, it is clear that
the order of dismissal has been passed
on
the
erroneous
basis
that
the
conviction in the criminal case would
ipso
facto
result
in
an
order
of
termination. In this view of the matter,
we are of the view that it would be
appropriate and in the interest of justice
to set aside the impugned order of the
learned Single Judge and to remit the