it2025_00378 — Withholding of 10% of pension of an employee under administrative circular, dated 22-8-1974 and 31-10-1974 and Government Resolution No. 3104, dated 31-7-1980 is unjustified after the employee (Appellant herein) had superannuated on 31-3-2008. Hence 10% of pension withheld after superanuation due to pending departmental case against the Applicant herein on 31-3-2008 till 19-7-2012 is liable to be paid

Withholding of 10% of pension of an employee under administrative circular, dated 22-8-1974 and 31-10-1974 and Government Resolution No. 3104, dated 31-7-1980 is unjustified after the employee (Appellant herein) had superannuated on 31-3-2008. Hence 10% of pension withheld after superanuation due to pending departmental case against the Applicant herein on 31-3-2008 till 19-7-2012 is liable to be paid — This case relates to an appeal against the withholding of 10% of pension and full gratuity by the State of Bihar based on administrative circulars, under the circumstances that the employee had super... — Facts: Appellant herein, appointed to the post of Touring Veterinary Officer (TVO) at Pawana, Bihar by the State Government, was made accused in the fodder scam lodged by CBI in RC Case No. 48-A of 1996. He was issued with a charge-sheet and placed under suspension on 31-5-2002 under Rule No. 49

(a) of Civil Services (Classification, Control and Appeal) Rules, 1930 which rule is prior to enforcement of Bihar Government Servant (Classification, Control and Appeal) Rules of 2005. Applicant continued under suspension till he attained the age of superannuation on 31-3-2008. The short issue which arises for consideration is, whether the State of Bihar was justified in withholding of 10% of pension and full gratuity of the Appellant under Circular, dated 22-8-1974 and 31-10-1974 and Government Resolution, dated 31-7-1980, on ground of pending criminal proceedings℃ The issue that remained for consideration was with respect to withholding payment of 10% of pension and full amount of gratuity Applicant filed a case before the High Court of Bihar. The Court studied the Bihar Pension Rules, 1950 enacted under Section 241 (2)

(b) of the Government of India Act, 1935 which came into force on 20-1-1950 which reads as under:- Rule 27 Pension Rules include gratuity. Rule 43

(a) reads - "The decision of the Provincial Government on any question of withholding or withdrawing the whole or any part of a pension under this Rule shall be final and conclusive. The State Government further reserves the right of withholding or withdrawing a pension or any part of it, either permanently or for a specified period and the right of ordering recovery from pension of the whole or part of any pecuniary loss caused to Government, if the pensioner is "found in departmental or judicial proceeding to have been guilty of grave misconduct" or "to have caused pecuniary loss to Government by negligence or misconduct" during his service including service rendered on re-employment after retirement as per Rule 43 (b)". Rule 43

(b) did not cover a situation where judicial or department proceeding were pending. Circular, dated 22-8-1974 issued by the Finance Department of Government of Bihar deals with payment of pension to Government servants who are under suspension or against whom the departmental or judicial proceedings or enquiries have not been concluded on the date of compulsory retirement. Sanctioning of pension under the above circumstance is pending and has decided which is reproduced. Grant of pension under aforesaid provision shall not prejudice the operation of Rule 139 of the Bihar Pension Rules where final pension is sanctioned upon the conclusion of the proceedings. Further circulars and implication thereof are brought out. Circulars, dated 22-8-1974 and 31-10-1974 are administrative instruction / executive orders issued under Article 309 of the Constitution and cannot set to have the force of law. Summarizing the case in Paragraphs 18 to 29 of the judgment it was held: