# Narendra Kumar Singh v. State of U.P. and Ors

- **Citation:** (2013) 3 ILRA 1486
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-10-05
- **Case number:** Civil Misc. Writ Petition No. 12574 of 2013
- **Bench:** Rajes Kumar, Mahesh Chandra Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/narendra-kumar-singh-v-state-of-u-p-and-ors-42731
- **Pages:** 4

## Headnote

Constitution of India, Art.-226-Service Lawfull pension-interim pension given on
ground-against the adverse entry-appellate
authority will set-a-side the order liberty
given
to
initiate
fresh
departmental
proceeding-against charge sheet in criminal
proceeding-hence interim pension-held-no
G.O.
or
circular
provides
withholding
pension-while Hon'ble High Court already
given protection from taking coercive
action-held-entitled for full pension.

Held: Para-15
We have also perused the Government Order
dated 28.10.1980, annexure-CA-1 to the
counter affidavit, which has been made basis
for withholding the part of the pension and
allowing
the
interim
pension.
This
Government Order provides the payment of
interim pension where the departmental
proceeding are pending. None of the circular,
Government Order or any provision has been
referred before us, which provides that
where
no
departmental
proceeding
is
pending, still the pension can be withheld.
Case Law discussed:
2007(10) ADJ, 561; 2009(7) ADJ 379; 2012(1)
ESC, 57(Alld.); AIR 1971 SC 1409; (1983) 1
SCC 305; 2005(5) SCC 245.

## Text

1486 INDIAN LAW REPORTS ALLAHABAD SERIES
the said order, the present writ petition has
been filed in the year 2001 which remained
pending for about twelve years and came to
be heard now. In view of these facts the last
submission of the counsel for the respondents
that the claim of the petitioner for
compassionate appointment is belated, is
wholly misconceived and baseless. Such stand
cannot be taken in view of the fact that this is
not a ground in the impugned order for
rejection of petitioner's application. In the case
of Chief General Manager, SBI Vs. Durgesh
Kumar Tiwari reported in 2004 (5) AWC
4838, a Division Bench of this Court followed
earlier two judgments in Ajay Kumar Shebdy
Vs. Chief Security Commissioner 2004 (2)
UPLBEC 1503 and Smt. Anju Mishra Vs.
General Manager, Kanpur 2004(1) UPLBEC
201 and held that if the application for
compassionate appointment was filed within
time then merely because the applicant was
unnecessarily dragged from pillar to post for
getting employment and for this cause
resulting in delay, he should not be denied the
appointment.

13. In view of the discussions made
above, the writ petition succeeds and is hereby
allowed. The impugned order dated 4.12.2000
(Annexure-7) passed by the respondent no.1 is
set aside. The matter is remitted back to the
respondent no.1 with direction to reconsider
the application of the petitioner and pass
appropriate order in accordance with law in
the light of the observations made above,
within a period of two months from the date a
certified copy of this order is filed by the
petitioner before him.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.10.2013

BEFORE
THE HON'BLE RAJES KUMAR, J.
THE HON'BLE MAHESH CHANDRA TRIPATHI,J.
Civil Misc. Writ Petition No. 12574 of 2013

Narendra Kumar Singh ...Petitioner
Versus
State of U.P. and Ors. ...Respondents

Counsel for the Petitioner:
Sri Nisheeth Yadav

Counsel for the Respondents:
C.S.C.
Constitution of India, Art.-226-Service Lawfull pension-interim pension given on
ground-against the adverse entry-appellate
authority will set-a-side the order liberty
given
to
initiate
fresh
departmental
proceeding-against charge sheet in criminal
proceeding-hence interim pension-held-no
G.O.
or
circular
provides
withholding
pension-while Hon'ble High Court already
given protection from taking coercive
action-held-entitled for full pension.

Held: Para-15
We have also perused the Government Order
dated 28.10.1980, annexure-CA-1 to the
counter affidavit, which has been made basis
for withholding the part of the pension and
allowing
the
interim
pension.
This
Government Order provides the payment of
interim pension where the departmental
proceeding are pending. None of the circular,
Government Order or any provision has been
referred before us, which provides that
where
no
departmental
proceeding
is
pending, still the pension can be withheld.
Case Law discussed:
2007(10) ADJ, 561; 2009(7) ADJ 379; 2012(1)
ESC, 57(Alld.); AIR 1971 SC 1409; (1983) 1
SCC 305; 2005(5) SCC 245.

(Delivered by Hon'ble Rajes Kumar, J.)

1. Heard learned counsel for the
petitioner and learned Standing Counsel.

2. By means of the present writ
petition, the petitioner is challenging the
order dated 07.01.2013 passed by the
Inspector General of Police, Department
3 All] Narendra Kumar Singh Vs. State of U.P. and Ors.
1487
of Intelligence, by which interim pension
of the petitioner has been allowed to the
extent of Rs.15,010/- on the ground that
in a criminal case, charge sheet has been
submitted against the petitioner, which is
pending before the Court.

3. Brief facts of the case are that the
petitioner retired on 31.07.2012 from the post
of Deputy Superintendent of Police. It appears
that when the petitioner was posted as
Inspector at Mainpuri in 2001, a first
information report has been lodged by one Sri
Bharat Singh Chauhan against Updesh Singh
Chauhan and Prempal Singh. The chargesheet was submitted and the investigation has
been transferred to the C.B.(C.I.D). In the
enquiry proceedings, the C.B.(C.I.D) found
that the petitioner did not take any preventive
measures, rather in collusion with Updesh
Singh Chauhan, intended to get the house
occupied/grabbed. For such charges, chargesheet has been submitted against the
petitioner. The petitioner filed Criminal Misc.
Application under Section 482 Cr.P.C. being
No.10149 of 2009, Narendra Kumar Singh
Vs. State of U.P. and another before this
Court. This Court vide order dated 06.05.2009
after recording the reasons, passed an interim
order that no coercive action shall be taken
against the applicant. According to the
petitioner, the aforesaid Criminal Misc.
Application, under Section 482 Cr.P.C. is
pending. It appears that on the basis of the
charge-sheet filed by C.B.(C.I.D) in the
enquiry report, a departmental proceedings
has been initiated against the petitioner and
vide order dated 03.06.2003 passed by
Superintendent of Police, Mainpuri , the
integrity of the petitioner has been withheld.
Against the said order, the petitioner filed
appeal before the D.I.G., Agra, which has
been allowed and the integrity has been
certified. However, it has been observed that
after the decision in the criminal case, it will
be open to the department to initiate a fresh
proceeding.

4. The contention of the petitioner is
that no departmental proceeding is pending
against the petitioner at present and, therefore,
submission is that the petitioner is entitled for
full pension. It is further submitted that mere
pendency of criminal proceeding will not
disentitle the petitioner to get full pension,
inasmuch as there is no charge of the financial
irregularities. Reliance is placed on the
Division Bench decision of this Court in the
case of Mahesh Bal Bhardwaj Vs. U.P. Croperative Federation Ltd. and another,
reported in 2007(10) ADJ, 561 and the
decision of learned Single Judge in the case of
Radhey Shyam Shukla Vs. State of U.P. and
another, reported in 2009 (7) ADJ, 379 and
Division Bench decision of this Court in the
case of Lal Sharan Vs. State of U.P. and
others, reported in 2012 (1) ESC, 57 (Alld.).

5. Learned Standing Counsel states
that it is true that at present no department
proceeding is pending against the petitioner
but if the petitioner will be punished in the
criminal proceedings, the liberty has been
given by the appellate authority, to initiate a
fresh proceeding and, therefore, the interim
pension allowed to the petitioner is wholly
justified.

6. We have considered the rival
submissions. Admittedly, there is nothing
on record to suggest that any departmental
proceeding
is
pending
against
the
petitioner. There is no such averment in
the counter affidavit. Merely because a
criminal case is pending that too of a
charge that he has not taken any
preventive action, full pension can not be
withheld. There is no charge of any
financial irregularities.
1488 INDIAN LAW REPORTS ALLAHABAD SERIES

7. We are of the view that on the
facts and circumstances, full pension can
not be denied.

8. In the case of Deoki Nandan Shan
Vs. State of U.P., reported in in AIR 1971
SC, 1409, the Apex Court ruled that the
pension is a right and payment of it does not
depend
upon
the
discretion
of
the
Government but is governed by the Rules
and the Government servant coming within
those Rules is entitled to claim pension and
grant of pension does not depend upon
anyone'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 effrect 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 further affirmed by the Apex Court
in the case of State of Punjab Vs. Iqbal
Singh, reported in AIR 1976, SC, 667.

9. In the case of D.S.Nakara Vs. Union
of India, reported in (1983) 1 SCC, 305, the
Apex Court has observed as under :

"From the discussion three things
emerge : (1) 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 article 309 and clause (5) of
Article 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....."

10. The ratio laid down in these cases
had been subsequently followed by the Apex
Court in series of its decisions including the
case of Secretary, O.N.G.C. Limited Vs.
V.U.Warrier, reported in 2005 (5) SCC, 245.

11. Division Bench of this Court in the
case of Mahesh Bal Bhardwaj Vs. U.P. Cooperative Federation Ltd. and another
(Supra) has held that gratuity and other post
retiral dues, which the petitioner is otherwise
entitled under the Rules, could not have been
withheld either on the pretext that criminal
proceedings were pending against the
petitioner or for the reason that on the
outcome of the criminal trial, some more
punishment was intended to be awarded.

12. Learned Single Judge of this Court
in the case of Radhey Shyam Shukla Vs. State
of U.P. and another (Supra) has also taken the
similar view and has held that mere pendency
of the criminal proceedings would not
authorize withholding of gratuity.

13. Division Bench of this Court in
the case of Lal Sharan Vs. State of U.P.
and others (Supra) has held that mere
intention to obtain sanction for initiating
disciplinary enquiry could not be basis for
withholding the post retiral dues unless
sanctioned, granted and the disciplinary
proceedings started.

14. Apex Court in the case of State of
Punjab and another Vs. Iqbal Singh, (Supra)
has further held that since the cut of the
pension and the gratuity adversely affects the
retired employee as such order can not be
passed without giving reasonable opportunity
of making his defence.

15. We have also perused the
Government
Order
dated
28.10.1980,
annexure-CA-1 to the counter affidavit,
which has been made basis for withholding
3 All] S.P. Shukla Vs. State of U.P. and Ors.
1489
the part of the pension and allowing the
interim pension. This Government Order
provides the payment of interim pension
where the departmental proceeding are
pending. None of the circular, Government
Order or any provision has been referred
before us, which provides that where no
departmental proceeding is pending, still the
pension can be withheld.

16. In view of the above, the writ
petition is allowed and mandamus is being
issued to the respondents to pay full pension
to the petitioner within a period of two months
from the date of presentation of the certified
copy of this order. However, it will be open to
the department to proceed afresh after the
decision in the criminal case as observed by
the appellate authority while certifying the
integrity of the petitioner in accordance to law.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.10.2013

BEFORE
THE HON'BLE RAJES KUMAR, J.
THE HON'BLE MAHESH CHANDRA TRIPATHI,J.

Civil Misc. Writ Petition No.40847 of 2013

S.P. Shukla

 ...Petitioner
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Keshari Nath Tripathi, Sri K.N. Mishra
Sri Abhishek Mishra

Counsel for the Respondents:
C.S.C., Sri Shivaji Singh

Constitution of India, Art.-226-Transfer
order on letter of MLA for adjustment of his
relative-letter not denied-held-such order
neither
in
Public
interest
nor
on
administrative
exigencies-quashed-with
cost of Rs. 10,000.
Held: Para-5 & 6
5. The endorsement/direction given by Sri
Jagdev Singh, O.S.D., on 15.7.2013 has not
been
disputed.
On
the
facts
and
circumstances, it is apparent that the
petitioner has been transferred at the
behest of sitting M.L.A. of Ruling Party to
accommodate
his
relative,
who
is
respondent no. 3 within 15 days of his
posting at Kanpur.

6. On the facts and circumstances, we
are of the view that the transfer order is
full of malafide and is not sustainable.
Such type of transfer is not expected
from the Government and authorities
should restrain themselves from passing
such order on the dictate of politicians,
contrary to the Government policy.

(Delivered by Hon'ble Rajes Kumar, J.)

1. Heard Sri K.N. Mishra, learned
counsel for the petitioner, Sri Y.K. Yadav,
learned Standing Counsel appears on
behalf of respondent nos. 1 and 2 and Sri
Shivaji Singh, Advocate appears on
behalf of respondent no. 3.

2. By means of the present petition, the
petitioner has challenged the transfer order
dated 24.7.2013 by which the petitioner has
been transferred from Kanpur to Devipatan.

3. It is the case of the petitioner that by
the transfer order dated 9.7.2013, he has been
transferred from Gorakhpur to Kanpur as a
Deputy Labour Commissioner. He took the
charge at Kanpur and was working there. By
the impugned order, the petitioner has been
transferred from Kanpur to Devipatan. The
petitioner has challenged the transfer order.
By the interim order dated 29.7.2013,
impugned transfer order has been stayed.

4. Learned counsel for the petitioner
submitted that the petitioner has been
transferred on the basis of the letter of Sri