# State of U.P. & Ors v. Mahanand Pandey & Anr

- **Citation:** (2021) 8 ILRA 703
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-14
- **Case number:** Special Appeal No. 146 of 2021
- **Bench:** Munishwar Nath Bhandari, A.C.J. Piyush Agrawal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-mahanand-pandey-anr-47295
- **Pages:** 6

## Headnote

A. Service Law - Pension and Gratuity
- Civil Service Regulations Relating to
Pension
to
State
Employees:
Regulations 351-AA, 919-A(3) - The
word
"judicial
proceeding"
used
u/Regulation 351-AA would include
every proceeding pending in the Court
whether original or at the appellate
stage.
The
judicial
proceeding
means
proceeding over which Judge presides. A
criminal appeal cannot be taken out from
the definition of "judicial proceeding" and
thereby, if one is acquitted but appeal
thereupon is pending, he/she would be
governed
by
Regulation
351-AA
and
thereby, entitled to the provisional pension.
(Para 15)

In present case, pending criminal appeal
would fall in the definition of "judicial
proceeding" and thereby, Regulation 351AA read with Regulation 919-A(3) would be
704 INDIAN LAW REPORTS ALLAHABAD SERIES
applicable. The non-appellant would be
entitled to the provisional pension. As per
Regulation 919, the provisional pension now
is the full pension though one would not be
entitled to the gratuity till disposal of the
appeal. (Para 17)

B. Before making claim for parity
pursuant
to
Article
14
of
the
Constitution of India, one has to make
out a legal right for grant of benefit.
The case of parity cannot be accepted
dehors the rules. It is otherwise to record
that other co-employees were extended
benefit of pension and gratuity in absence
of the information about the pending
criminal appeal against them. The appellant
should have been careful in taking decision
but finding it to be bona fide in reference to
other co-employees facing criminal appeal,
the claim of parity cannot be accepted.
(Para 18)

Special appeal allowed. (E-3)

Precedent followed:

## Text

8 All. State of U.P. & Ors. Vs. Mahanand Pandey & Anr.
703
SSP Varanasi (the Appointing Authority)
could not have ignored the letter of the
Recruitment Board dated 16th September,
2019 cannot be accepted. The letter
aforesaid was without authority of law as it
has already been clarified that Recruitment
Board has no authority to constitute a
Medical Board thus, no sanctity was
existing to the letter dated 16th September,
2019.

7. The judgment of the learned Single
Judge is even in ignorance of the relevant
Rule and for that, Rule 15 (g) of the Uttar
Pradesh
Police
Constable
and
Head
Constable Service Rules, 2015 is quoted
herein:

"(g) Medical Examination

The candidates whose name are
in the select list sent as per clause (e), will
be
required
to appear
for
Medical
Examination by the Appointing authority.
Medical Examination will be conducted in
the Police Line of the concerned District or
at the place mentioned by the Appointing
authority. Medical Examination will be
conducted
as
per
Appendix-3.
The
candidates found unsuccessful in Medical
Examination shall be declared unfit by the
Appointing authority and such vacancies
shall be carried forward for next selection."

8. The Rule quoted above gives
authority to the Appointing Authority to ask
the successful candidates to appear for
medical
examination.
The
medical
examination is to be conducted in Police
Line of the concerned district or at the
place
mentioned
by
the
Appointing
Authority. It has to be as per Appendix-3.
The Rule aforesaid has been ignored by the
learned Single Judge while giving authority
to the Recruitment Board for holding the
medical examination and passing order.
The judgment under challenge is not
sustainable as goes against the Rules. It is,
accordingly, set aside. The appeal is
allowed with the aforesaid.
----------
(2021)08ILR A703
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.07.2021

BEFORE

THE HON'BLE MUNISHWAR NATH
BHANDARI, A.C.J.
THE HON'BLE PIYUSH AGRAWAL, J.

Special Appeal No. 146 of 2021

State of U.P. & Ors. ...Appellants
Versus
Mahanand Pandey & Anr. ...Respondents

Counsel for the Appellants:
Sri Subhash Rathi

Counsel for the Respondents:
Sri Vinod Kumar Mishra

A. Service Law - Pension and Gratuity
- Civil Service Regulations Relating to
Pension
to
State
Employees:
Regulations 351-AA, 919-A(3) - The
word
"judicial
proceeding"
used
u/Regulation 351-AA would include
every proceeding pending in the Court
whether original or at the appellate
stage.
The
judicial
proceeding
means
proceeding over which Judge presides. A
criminal appeal cannot be taken out from
the definition of "judicial proceeding" and
thereby, if one is acquitted but appeal
thereupon is pending, he/she would be
governed
by
Regulation
351-AA
and
thereby, entitled to the provisional pension.
(Para 15)

In present case, pending criminal appeal
would fall in the definition of "judicial
proceeding" and thereby, Regulation 351AA read with Regulation 919-A(3) would be
704 INDIAN LAW REPORTS ALLAHABAD SERIES
applicable. The non-appellant would be
entitled to the provisional pension. As per
Regulation 919, the provisional pension now
is the full pension though one would not be
entitled to the gratuity till disposal of the
appeal. (Para 17)

B. Before making claim for parity
pursuant
to
Article
14
of
the
Constitution of India, one has to make
out a legal right for grant of benefit.
The case of parity cannot be accepted
dehors the rules. It is otherwise to record
that other co-employees were extended
benefit of pension and gratuity in absence
of the information about the pending
criminal appeal against them. The appellant
should have been careful in taking decision
but finding it to be bona fide in reference to
other co-employees facing criminal appeal,
the claim of parity cannot be accepted.
(Para 18)

Special appeal allowed. (E-3)

Precedent followed:

1. Amrit Lal Vs Chief Election Officer & ors.,
2014 SCC OnLine All 12502 (Para 12)

2. Rajeev Sharma Vs St. of U.P. & ors., 2014
SCC OnLine All 12969 (Para 13)

3. St. of U.P. & ors. Vs Jai Prakash, 2013 SCC
OnLine All 14150 (Para 13, 14)

4. Subhash Chandra Vs S.M. Agarwal, 1984
Criminal Law Journal 481 (Para 16)

Present Special Appeal arises out of order
dated 16.03.2021, passed by Hon'ble Mr.
Justice M.C. Tripathi, J. in Civil Misc. Writ
Petition No. 2529 of 2021.

(Delivered by Hon'ble Munishwar Nath
Bhandari, A.C.J.)

1. The State has preferred this appeal
to challenge the judgment dated 16.03.2021
passed by learned Single Judge whereby
the writ petition to seek full pension and
gratuity apart from other retiral benefit was
allowed.

2. The non-appellant/petitioner was
appointed on the post of Constable on
27.12.1979. He was promoted to higher
posts from time to time and thereupon
retired
on
attaining
the
age
of
superannuation on 31.03.2020. Prior to
retirement, an FIR was lodged against him
for offence under Sections 307, 332, 353,
427 Indian Penal Code and Section 5 of
Explosive Act. Apart from the aforesaid, a
complaint was also registered by one
Umesh Chand Mishra alleging commission
of offence under Section 302 Indian Penal
Code apart from other offences and
thereby, another FIR was registered with
investigation by CBCID. The charge-sheets
in the cases were filed by the police,
however,
after
the
trial,
nonappellant/petitioner was acquitted in both
the cases. The State Government preferred
an appeal against the order of acquittal and
was registered bearing no. 3374 of 2013.
The State appeal was admitted by this
Court on 24.10.2013.

3. The department did not initiate
departmental proceedings in reference to
the
commission
of
crime
but
nonappellant/petitioner
was
placed
under
suspension by the order dated 24.07.1996.
The
suspension
was
withdrawn
on
26.12.1996.

4. The non-appellant/petitioner having
retired on 31.03.2020, filed a writ petition
to seek full pension and other retiral
benefits when several representations sent
by him could not get favourable result. The
claim of full pension and other retiral
benefit was not only in reference to rule but
on the ground of parity because other coemployees were extended benefit of full
8 All. State of U.P. & Ors. Vs. Mahanand Pandey & Anr.
705
pension despite pendency of the State
appeal against the order of acquittal in their
cases also. Learned Single Judge allowed
the petition with a direction to the
respondents to extend benefit of all retiral
benefits within six weeks otherwise to
extend benefit of 12% interest on delayed
payment.

5.

Learned
Standing
Counsel
submits
that
as
per
Civil
Service
Regulations Relating to Pension to State
Employees, one was made entitled to
provisional pension if any departmental
or judicial proceedings or enquiry by the
Administrative
Tribunal
is
pending.
Learned Single Judge ignored Regulation
351-AA while allowing the writ petition.
Pendency of the appeal against the order
of acquittal is judicial proceeding. In
view of the above, judgment of learned
Single Judge is in ignorance of the
Regulations as well as judgment by this
Court. The prayer is, accordingly, to set
aside the judgment of learned Single
Judge and allow the appeal.

6. Per contra, learned counsel for the
respondents submits that pendency of the
criminal appeal does not fall in the
definition of "judicial proceeding". Learned
Single Judge thus, allowed the writ petition
by referring to the judgment of this Court
wherein it was held that pendency of the
criminal appeal should not be a bar to grant
of
retiral
benefits.
The
prayer
is,
accordingly, to dismiss the appeal.

7. We have considered the rival
submissions of the parties and perused the
record.

8. It is a case where nonappellant/petitioner was made entitled to
the provisional pension during pendency of
the appeal against the order of acquittal.
The facts disclosed earlier show two FIRs
against the non-appellant/petitioner but
after the trial, he was acquitted. The State
Government preferred a criminal appeal
and is pending in the Court.

9. The only question before us is as to
whether pending criminal appeal would fall
in the definition of "judicial proceeding" so
as to attract Regulations 351-AA and 919A(3). For ready reference, both the
provisions are quoted hereunder :

"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 Article 919-A may
be sanctioned.

919-A(3).
No
death-cumretirement gratuity shall be paid to the
Government servant until the conclusion of
the departmental proceedings or the
enquiry by the Administrative Tribunal and
issue of final orders thereon."

10.
Regulation 351-AA
allows
provisional pension to a Government
servant against whom departmental or
judicial proceeding or any enquiry by
Administrative Tribunal is pending on the
date of retirement or instituted after the
retirement.

11. The facts on record show
pendency of the criminal appeal against the
non-appellant/petitioner. It is to challenge
the judgment of the trial Court acquitting
the non-appellant/petitioner. The issue
aforesaid has not been decided by this
706 INDIAN LAW REPORTS ALLAHABAD SERIES
Court in any of the judgment referred by
learned Single Judge.

12. In the case of Amrit Lal Versus
Chief Election Officer and others reported
in 2014 SCC OnLine All 12502, the issue as
to whether criminal appeal would fall in the
definition of "judicial proceeding" has not
been answered. In the said case, a challenge
was made to the order denying benefit of
gratuity due to pendency of the criminal
appeal. The Court found that the appeal
was dismissed on 17.05.2012. In view of
the above, no justification was found to
withhold benefit of gratuity. The judgment,
however,
makes
an
observation
that
pending criminal appeal cannot be a valid
ground for non-payment of gratuity, more
so after dismissal of the appeal. The
judgment aforesaid does not address the
issue whether criminal appeal falls in the
definition of "judicial proceeding". An
observation about the entitlement of the
gratuity without consideration of issue
cannot be said to be a judgment on the legal
issue framed herein.

13. In the case of Rajeev Sharma
Versus State of U.P. and others reported in
2014 SCC OnLine All 12969, the Division
Bench relied on the judgment in the case of
Amrit Lal (supra) where the issue involved
herein was not decided. The Division
Bench in the case of Rajeev Sharma
(supra) has made a reference of the
judgment of this Court in the case of State
of U.P. and others Versus Jai Prakash
reported in 2013 SCC OnLine All 14150
also. The relevant paragraph of the
judgment in the case of Rajeev Sharma
(supra) is quoted hereunder :

"Civil
Service
Regulation
is
applicable upon the employees of the
power corporation regulation 351-AA and
regulation 919-A(3), prohibits payment of
death-cum-retirement gratuity until the
conclusion of departmental or judicial
proceeding. Division Bench in Jai Prakash
(Supra) has held "judicial proceedings"
would necessarily include pendency of
criminal case. The question to be answered
is as to whether pendency of criminal
appeal, against acquittal, will include
"pending judicial proceeding". In Amrit Lal
(Supra), Division Bench observed pendency
of criminal appeal against acquittal is not a
ground for withholding the retiral dues.
After acquittal there is nothing against the
employee, more so, in the facts of the case,
the respondents did not choose to initiate
any disciplinary proceedings after acquittal
nor did they examine the judgment of the
trial court to find out, as to whether
petitioner was acquitted ''honourably', once
failing to exercise their powers under the
rule to initiate any proceedings, it is not
open for the respondents to withhold retiral
dues, merely on pendency of criminal
appeal."

14. The judgment supra gives a
reference of the judgment in the case of Jai
Prakash (supra) to hold a criminal appeal
to fall in the definition of "judicial
proceeding". A careful reading of the
judgment in the case of Jai Prakash (supra)
does not show a finding on it though it was
held
that
during
pendency
of
the
departmental or judicial proceeding, one
would be entitled to the provisional pension
only. In view of the aforesaid, we need to
decide the issue directly involved in this
case.

15. The word "judicial proceeding"
used under Regulation 351-AA would
include every proceeding pending in the
Court whether original or at the appellate
stage. The judicial proceeding means
8 All. State of U.P. & Ors. Vs. Mahanand Pandey & Anr.
707
proceeding over which Judge presides. A
criminal appeal cannot be taken out from
the definition of "judicial proceeding" and
thereby, if one is acquitted but appeal
thereupon is pending, he/she would be
governed by Regulation 351-AA and
thereby, entitled to the provisional pension.

16. The interpretation of word "judicial
proceeding"
otherwise
came
for
consideration before the Apex Court in the
case of Subhash Chandra Versus S.M.
Agarwal reported in 1984 Criminal Law
Journal 481. Paragraph 7 of the said
judgment is quoted hereunder for ready
reference :

"Bawa Gurcharan Singh, learned
counsel for the petitioner, also invited our
attention to Section 2(C)(ii) of Contempts of
Courts Act wherein a publication which
prejudices or interferes or tends to interfere
with, the due course of any judicial
proceedings, has been defined as criminal
contempt. His contention that by using the
words ''judicial proceeding' the Legislature
has done away with the distinction between
trial and appeal and has in its wisdom chosen
to use the words ''judicial proceedings' which
are wider in sweep and which we (by) fair
construction would mean even the appeal
which is a continuation of the trial, to our
mind appears to be well founded. It would
thus be seen that respondent no. 1 went to the
media to give interview in respect of a case
which was pending trial before this court and
the contents of the interview would show that
it had not only a tendency and capacity to
cause prejudice but it did make it difficult for
the court to deal with the case in the manner
which law and justice would require of it."

17. The judgment aforesaid covers the
issue involved herein. In view of the
discussion made above and the finding
recorded by us, pending criminal appeal
would fall in the definition of "judicial
proceeding" and thereby, Regulation 351AA read with Regulation 919-A(3) would
be applicable. The non-appellant would be
entitled to the provisional pension. As per
Regulation 919, the provisional pension
now is the full pension though one would
not be entitled to the gratuity till disposal of
the appeal. The non-appellant/petitioner
can, accordingly, pursue pending criminal
appeal against him.

18. In view of the finding recorded above,
the case of parity cannot be accepted dehors the
rules. It is otherwise to record that other coemployees were extended benefit of pension
and gratuity in absence of the information about
the pending criminal appeal against them. The
appellant should have been careful in taking
decision but finding it to be bonafide in
reference to other co-employees facing criminal
appeal, the claim of parity cannot be accepted.
It is otherwise settled law that before making
claim for parity pursuant to Article 14 of the
Constitution of India, one has to make out a
legal right for grant of benefit. We have already
held that pending criminal appeal falls in the
definition of "judicial proceeding" thus, one
would be governed by Regulation 351-AA. If
the direction is given to allow the benefit of
pension and gratuity pending criminal appeal, it
would be dehors the regulation.

19. Accordingly, we find reason to
cause interference in the judgment of
learned Single Judge. The direction for
payment of all retiral benefits with interest
on delayed payment is set aside. The nonappellant/petitioner, however, be entitled to
provisional pension which would be the
full pension as per Regulation 919-A(3).

20. With the aforesaid, the appeal is
allowed.
708 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2021)08ILR A708
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.08.2021

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE RAVI NATH TILHARI, J.

Special Appeal No. 147 of 2016

State of U.P. & Ors. ...Appellants
Versus
Shyam Lal 425(S/S)2011 ...Respondent

Counsel for the Appellants:
C.S.C.

Counsel for the Respondent:
Ram Harakh

A.
Service
Law
-
Dismissal
-
Maintainability of the review petition on
the ground of dismissal of the Special
Leave
Petition
against
the
same
judgment. Mere rejection of a special leave
petition does not take away the jurisdiction of
the Court, Tribunal or Forum whose order
forms the subject-matter of petition for special
leave, to review its own order if grounds for
exercise of review jurisdiction are shown to
exist. The doctrine of merger would not apply
even when the order rejecting an SLP is a
speaking order (that is, where reasons have
been assigned for rejecting the petition for
special leave). But the law stated or declared
shall attract applicability of Article 141 of the
Constitution. The reasons assigned in the order
expressing its adjudication (expressly or by
necessary implication) on point of fact or law
shall take away the jurisdiction of any other
Court, tribunal or authority to express any
opinion in conflict with or in departure from the
view taken by the Apex Court. (Para 9, 11)

In the present case, mere rejection of the
SLP vide order dated 29.7.2016 without
assigning any reasoning would not take
away the jurisdiction of this Court to review
its own judgment if grounds for exercise of
review jurisdiction exist. (Para 13)

B. Scope of Judicial Review - High Court,
as a Court of record, has a duty to itself
to keep all the records correctly and in
accordance with law. Hence, if any
apparent error is noticed by the High
Court in respect of any orders passed by
it, the High Court has not only power, but
a duty to correct it. (Para 19 to 21)

Review Petition allowed. Judgment dated
19.04.2016 is recalled and the Special Appeal
is restored to its original number for decision
afresh. (E-3)

Precedent followed:

1. Khoday Distilleries Ltd. (Now known as
Khoday
India
Limited)
&
ors.
Vs
Sri
Mahadeshwara Sahakara, (2019) 4 SCC 376
(Para 5)

2. Kunhayammed & ors. Vs St. of Kerala & anr.,
(2000) 6 SCC 359 (Para 11)

3. Kamlesh Verma Vs Mayawati, (2013) 8 SCC
320 (Para 15)

4. Perry Kansagra Vs Smriti Madan Kansagra,
(2019) 20 SCC 753 (Para 16)

5.F.C.I. & anr. Vs M/s Seil Ltd. & ors., (2008) 3
SCC 440 (Para 17)

6. S. Nagraj Vs St. of Kar., (1993) Supp. 4 SCC
595 (Para 21)

7. M.M. Thomas Vs St. of Kerala & anr., (2000)
1 SCC 666 (Para 21)

Present review petition seeks review of
the judgment and order dated 19.04.2016,
passed by coordinate Bench in Special
Appeal (D) no. 147 of 2016.

(Delivered by Hon'ble Ravi Nath Tilhari, J.)

(1) Heard Sri Dileep Kumar Gautam,
learned counsel for the petitioner/review