Director of Education v. Gopal Krishna Gupta and Ors.

1. Respondent 11 superannuated from the post of Superintendent in the Directorate of Education[2] on 31 December 2015. Disciplinary proceedings under Rule 9 of the Central Civil Services (Pension) Rules[3] were instituted against him by way of issuance of Memorandum[4] dated 19 December 2017.

2. Aggrieved by the fact that he had not been paid regular pension though there were, on the date of his superannuation, no disciplinary “the respondent” hereinafter 2 “the DOE” hereinafter “CCS (Pension) Rules”, hereinafter “the charge-sheet” hereinafter or criminal proceedings pending against him, the respondent approached the Central Administrative Tribunal[5] by way of OA 1425/2016, praying that he be released gratuity, commuted pension and regular pension, with effect from 1 January 2016, with interest @ 12% p.a.

3. The Tribunal has allowed the entirety of the respondent’s claim.

4. Aggrieved thereby, the DOE has approached this Court under Article 226 of the Constitution of India, by means of the present writ petition.

5. Mr. Yogesh Maini, learned counsel for the respondent, restricts his claim for regular pension, for his client, for the period between 1 January 2016, when his client superannuated and 19 December 2017 when the Rule 9 chargesheet was issued.

6. There can be no cavil with this claim. Rule 9(4) of the erstwhile CCS(Pension) Rules, 1972 reads thus:

“the Tribunal” hereinafter

7. The Tribunal is clearly in error in holding that, as there were no disciplinary or criminal proceedings pending against the respondent on the date of his superannuation, he is ipso facto entitled to regular pension. The applicability of Rule 9(4) of the CCS (Pension) Rules is not restricted to cases in which disciplinary or criminal proceedings are instituted against the Government service before his superannuation. The sub-rule merely uses the expression “against whom any departmental or criminal proceedings are instituted” without any specification or stipulation regarding the date or time of institution. The only caveat is that, till the date of institution of the departmental or criminal proceedings, the employee would undoubtedly be entitled to regular pension; from the date of such institution, however, his entitlement would be restricted to provisional pension.

8. There is, in fact, quantitatively no difference between regular and provisional pension. The purpose and intent of making the payment of pension to the employee provisional is only because the outcome of the departmental, or criminal proceedings, is then unknown, and so as to prevent the vesting of any right, in the officer, to the pension, were the proceedings to culminate against him.

9. Thus, in the case of a Government servant against whom departmental proceedings are initiated under Rule 9, the Government servant would be entitled only to provisional pension. Needless to say, this rule can apply only after the institution of the departmental proceedings.

10. The point at which departmental proceedings are instituted under Rule 9 is clarified by Rule 9(6)(a)6 which clearly states that departmental proceedings would be deemed to be instituted on which date the statement of charges is issued to the Government servant or pensioner.

11. Though Mr. Balaji, learned counsel for the petitioner, submits that, even on the date when he superannuated, an order of suspension had been passed against the respondent, he was nonetheless allowed to superannuate. Moreover, suspension does not amount to institution of disciplinary proceedings.

12. There is no dispute about the fact that the charge memorandum was served on the respondent only on 19 December 2017.

13. As such by a conjoint reading of Rule 9(4) and 9(6)(a) of the CCS (Pension) Rules, the petitioner would be entitled to provisional pension only after 19 December 2017 but would be entitled to regular pension between the date of his retirement i.e. 31 December 2015 and 19 December 2017.