# No. 45957 of 2006 Harish Kumar Sharma v. Director of Education decided on

- **Citation:** (2012) 1 ILRA 229
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-02-10
- **Case number:** Civil Misc. Writ Petition No. 25548 of 2008
- **Bench:** Vineet Saran, Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/no-45957-of-2006-harish-kumar-sharma-v-director-of-education-decided-on-42106
- **Pages:** 4

## Headnote

C.S.C.

Civil
Services
Regulations-Regulation
351-A-withholding post retiral benefitsin
garb
of
disciplinary
proceedingchargesheets much after retirementwithout sanction of Governor under
regulation
351-A-admittedly
no
disciplinary
proceeding
was
pending
prior to retirement-pension gratuity and
other amounts be paid within 3 month.

Held: Para 6

In our considered opinion, the retiral
dues of the petitioner ought to have
been paid to him immediately after his
retirement and the same has wrongly
been
withheld
by
the
respondentauthorities under the garb of an enquiry
being
contemplated
against
the
230 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

petitioner.
As
per
Explanation
to
Regulation
351-A
"Departmental
proceeding shall be deemed to have
been instituted when the charges framed
against the pensioner are served to him
or, if the officer has been placed under
suspension from an earlier date, on such
date". Since neither charge-sheet was
issued to the petitioner prior to his
retirement nor was he ever placed under
suspension during his service period,
therefore
it
cannot
be
said
that
departmental
proceedings
had
been
initiated against the petitioner while he
was in service.
Case law discussed:
(2008) 1 UPLBEC 840; 2012 (1) ESC 57; AIR
1971 SC 1409; AIR 1976 SC 667; (1983) 1
SCC 305; 2005 (5) SCC 245

## Text

1 All] Malik Zafar Lari V. State of U.P.and others

229
U.G.C. scheme or the first statutes of the
University do not refer to any continuity in
service.

13. A Division Bench of this Court in
Civil Misc. Writ Petition No. 30104 of
2006, Dr. Pradeep Kumar Singh Purush Vs.
State of U.P. and others reported in 2009(5)
E.S.C. 3469 and Civil Misc. Writ Petition
No. 45957 of 2006 Harish Kumar Sharma
Vs. Director of Education decided on
24.2.2006, have also taken a similar view,
relying upon the law laid down in the case
of Shardhendu Bhushan.

14. Thus in view of the aforesaid
decisions of the Hon'ble Apex Court and
that of this Court, this Court has no option
but to follow the dicta of the Hon'ble Apex
Court, and that of this Court.

15. Since the basic fact that the
petitioner was in substantive employment as
a
lecturer
in
Tilakmanjhi
Bhagalpur
University, Bhagalpur, State of Bihar from
15.11.1996 to 9.5.2000 have not been
disputed or controverted and therefore, the
petitioner is fully entitled to claim the
benefits of said service rendered in State of
Bihar i.e. from 15.11.1996 to 9.5.2000 to be
included in his service rendered with
respondents.

16. Writ Petition No. 23342 of 2009
succeeds and is allowed. The order dated
4.2.2009 (Annexure-18 to the writ petition)
is quashed and a mandamus is issued to the
respondents to include the services of the
petitioner as Lecturer outside State of U.P.
from 15.11.1996 to 9.5.2000 and to grant
senior scale/selection grade on the post of
Lecturer.

17. Similarly for the facts and reasons
stated in W.P. No. 23342 of 2009, Writ
Petition No. 13118 of 2007 also stands
allowed and accordingly the impugned
order dated 4.12.2006 (Annexure-9 to the
writ petition) is quashed and a mandamus is
issued to the respondents to include the past
services of the petitioner as Lecturer outside
State of U.P. for the grant of Lecturer senior
scale/selection grade.

18. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.02.2012

BEFORE
THE HON'BLE VINEET SARAN, J
THE HON'BLE RAN VIJAI SINGH, J

Civil Misc. Writ Petition No. 25548 of 2008

Malik Zafar Lari

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

Counsel for the Petitioner:
Sri A.B. Singh

Counsel for the Respondents:
C.S.C.

Civil
Services
Regulations-Regulation
351-A-withholding post retiral benefitsin
garb
of
disciplinary
proceedingchargesheets much after retirementwithout sanction of Governor under
regulation
351-A-admittedly
no
disciplinary
proceeding
was
pending
prior to retirement-pension gratuity and
other amounts be paid within 3 month.

Held: Para 6

In our considered opinion, the retiral
dues of the petitioner ought to have
been paid to him immediately after his
retirement and the same has wrongly
been
withheld
by
the
respondentauthorities under the garb of an enquiry
being
contemplated
against
the
230 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

petitioner.
As
per
Explanation
to
Regulation
351-A
"Departmental
proceeding shall be deemed to have
been instituted when the charges framed
against the pensioner are served to him
or, if the officer has been placed under
suspension from an earlier date, on such
date". Since neither charge-sheet was
issued to the petitioner prior to his
retirement nor was he ever placed under
suspension during his service period,
therefore
it
cannot
be
said
that
departmental
proceedings
had
been
initiated against the petitioner while he
was in service.
Case law discussed:
(2008) 1 UPLBEC 840; 2012 (1) ESC 57; AIR
1971 SC 1409; AIR 1976 SC 667; (1983) 1
SCC 305; 2005 (5) SCC 245

(Delivered by Hon'ble Vineet Saran, J)

1. The petitioner was in the service
of the State Government. He retired from
service on 31.1.2007 from the post of Sub
Division Agriculture Extension Officer.
The grievance of the petitioner is that he
has not been paid his post retiral benefits
despite
he
having
approached
the
respondent authorities time and again.
This writ petition has thus been filed with
the prayer for a writ in the nature of
mandamus commanding the respondents
to provide post retial benefit to the
petitioner within such period as may be
fixed by this Court.

2. We have heard Sri A.B.Singh,
learned counsel for the petitioner as well
as learned Standing Counsel appearing on
behalf of the respondents and have
perused the record.

3. Although no order withholding
the post retiral benefits of the petitioner
has been passed but in the counter
affidavit the reason given for withholding
the same is that by a Government Order
dated 28.3.2005 disciplinary proceedings
were initiated against the petitioner for
having
committed
certain
financial
irregularities while he was posted as Soil
Conservation Officer, Mirzapur in the
year 1998-99 and 1999-2000, in which, it
is alleged that certain excess payments
were paid to the labourers. Admittedly no
charge sheet was ever issued to the
petitioner during his service period.
Specific averment to this effect has been
made in paragraph 11 of the writ petition
wherein it is stated that the charge sheet
was served on the petitioner in June,
2007. The same has not been denied in
the counter affidavit. It is contended by
the learned counsel for the petitioner that
the order dated 28.3.2005 was a sanction
to initiate disciplinary proceeding against
the petitioner. In the said letter itself, it
was mentioned that the enquiry officer
shall prepare the charge sheet and place
the same before the Government for
necessary sanction. It is the specific case
of the petitioner, which has not been
denied by the respondents, that the
petitioner was neither given a charge
sheet during his service period nor was
ever placed under suspension. It is thus
contended that disciplinary proceedings,
in the form of issuance of charge sheet,
after the retirement of the petitioner could
not be initiated without the sanction of the
Governor as provided under Regulation
351-A of the Civil Services Regulations.

4. A Division Bench of this Court in
the case of Ram Rakhan Singh vs. State
of U.P. (2008) 1 UPLBEC 840 has held
that where the charge sheet is served
subsequent to the retirement of the
employee without there being any order
of the Governor permitting the initiation
of the departmental proceeding against
1 All] Malik Zafar Lari V. State of U.P.and others

231
the employee, the same would be barred
under Regulation 351-A of the Civil
Services Regulations. Another Division
Bench in the case of Lal Sharan vs. State
of U.P. 2012 (1) ESC 57 has held that
mere intention to obtain sanction for
initiating disciplinary enquiry could not
be made basis for withholding post retiral
benefits unless sanction is granted and the
disciplinary proceeding starts. It has
further been held that the authorities
cannot withhold pension and other retiral
dues of a retired employee merely on the
ground that there was a possibility of an
enquiry being initiated against a retired
employee. The provision of seeking
sanction from the Governor in the case of
a retired employee has been made to
safeguard the interest of the retired
employees who could be harassed after
retirement.

5. In the present case, what we find
is that prior to the retirement of the
petitioner mere permission to hold an
enquiry was accorded but the charge sheet
was served in June, 2007 which was much
after the retirement of the petitioner.

6. In our considered opinion, the
retiral dues of the petitioner ought to have
been paid to him immediately after his
retirement and the same has wrongly been
withheld by the respondent-authorities
under the garb of an enquiry being
contemplated against the petitioner. As
per Explanation to Regulation 351-A
"Departmental
proceeding
shall
be
deemed to have been instituted when the
charges framed against the pensioner are
served to him or, if the officer has been
placed under suspension from an earlier
date, on such date". Since neither chargesheet was issued to the petitioner prior to
his retirement nor was he ever placed
under suspension during his service
period, therefore it cannot be said that
departmental
proceedings
had
been
initiated against the petitioner while he
was in service. Further after retirement,
departmental
proceedings
could
be
initiated only after sanction was accorded
by the Governor in terms of Regulations
351-A of the Civil Services Regulations,
which has not been done in the present
case. As such withholding of the pension
and other retiral dues of the petitioner in
the facts of the present case are wholly
unjustified in view of the law laid down
by the Apex Court in the case of Deoki
Nandan Shah vs. State of U.P. AIR 1971
SC 1409 whereby 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 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 further affirmed by
the Apex Court in the case of State of
Punjab vs. Iqbal Singh AIR 1976 SC
667.

7. In the case of D.S.Nakara vs.
Union of India (1983) 1 SCC 305 the
Apex Court has observed as under:

"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
232 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

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......"

8. 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 2005 (5) SCC
245.

9. The State Government has also
issued
a
Government
Order
No.31713/Dus/983/89 on 28th July, 1989 in
which, with a view to avoid the delay in
payment of pension, it is provided that the
service book is to be completed two years
prior to the date of retirement.

10. Regulation 912 (E) of the Civil
Service Regulations also provide that the
retirement of a Government employee
shall be published in the Gazette within a
week from the date of his retirement.
There is a complete mechanism for grant
of post retiral dues at the earliest and in
case there is any technical problem in
payment of final pension, then there is a
provision for provisional pension till the
payment of final pension.

11. Accordingly, this writ petition
succeeds and is allowed. The respondent
authorities are directed to pay the entire
retiral dues of the petitioner including upto-date pension within three months from
the date a certified copy of this order is
produced before the competent authority
and also pay the future pension to the
petitioner in accordance with law, month
by month.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.02.2012

BEFORE
THE HON'BLE RAN VIJAI SINGH,J.

Civil Misc. Writ Petition No. 35463 of 2008

Somnath

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

Counsel for the Petitioner:
Sri Siddharth Khare
Sri Adarsh Bhushan
Sri Suresh Singh

Counsel for the Respondents:
C.S.C.

U.P.
Govt.
Servant
(Discipline
and
Appeal) Rules 1999-Rule-7-Termination
of Temporary Govt. Servant-by putting
stigm of misconduct-without holding
enquiry as per procedure contained in
Rule
7-Termination
order
not
sustainable-Quashed with 50 % back
wages with liberty to initiate disciplinary
proceeding
by
following
procedure
prescribed under Rule 1999.

Held: Para 13

In view of the foregoing discussions, I
am of the view that the major penalty of
termination imposed by the respondents
is faulty for the reason that; for the
misconduct,
the
services
of
the
government
servant
cannot
be
terminated under the Rules of 1975 and
if the termination is based upon the
misconduct,
then
the
procedure