1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.1803/2002. : : Jai Prakash Sharma Vs. State of Rajasthan & Anr. : : Date of Order 18.12.2008 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr.Ashok Gaur for the petitioner. Mr.Dharmendra Pareek for Mr.J.M.Saxena for the respondents. Reportable 1. This writ petition has been filed challenging the order dated 25.1.2001 by which the petitioner was awarded punishment of stoppage of one grade increment without cumulative effect in the in disciplinary proceedings under Rule 17 of the Rajasthan Civil Services (CCA) Rules, 1958 (for short ' the Rules of 1958”). The petitioner also challenged the order dated 25.9.2001 by which his appeal was dismissed. Although initially learned counsel for the petitioner made arguments assailing validity of the aforesaid this order on merits, but ultimately he confined his argument 2 as to the implementation and effect the order of penalty in terms of Rule 17 (aa) of the Rules of 1958 as per the clarification issued by the State Government in its Department of Personnel vide circular No.F.3(6)Pers/A-1/64 Pt.II, Jaipur dated 28.6.2003. 2. Shri Ashok Gaur, learned counsel for the petitioner argued that order of penalty against the petitioner was issued on 25.1.2001 whereas his next increment was due on 1.9.2001. Effect of penalty of stoppage of one grade increment without cumulative effect in the manner it has been implemented by the respondents is that his pension has been calculated without adding the last increment. In the result, this order of penalty though outwardly categorised as penalty of stoppage of one grade increment without cumulative effect, in effect, would be a penalty of stoppage of one grade increment with cumulative effect because the petitioner has retired from service on 30.9.2001 and is no longer in service to regain the withhold one grade increment but on that basis, his pension would always remain affected. It is in order to take care of such a situation that the Department of Personnel issued circular No.P.9(2) (1) Personnel/A-3/2002 dated 28.6.2003 taking into 3 consideration the intention of the Rule 17 (aa) of Rules of 1958. 3. Shri Dharmendra Pareek learned counsel for the respondents opposed the writ petition and submitted that penalty which was actually imposed upon the petitioner was of stoppage of one grade increment without cumulative effect. Such penalty cannot be described as the penalty of stoppage of one grade increment with cumulative effect. Learned counsel submitted that interpretation of Rule 17 (aa) cannot be challenged to allow the restoration of one grade increment to the pay at the time of his retirement and on that basis, give him such benefit, which otherwise was intended to be taken away from him as a result of order of penalty. 4. Rule 17 of the Rules of 195 provides for the procedure to impose the minor penalties. 5. In order to appreciate the controversy, it would be apposite to reproduce Rule 17 (aa) of the Rules of 1958, which is as under :- 4 “17. Procedure for impose minor penalties.-- No order imposing any of penalties specified in clause (i) to (iii) of rule 14 shall be passed except after -- (a) xxxxxxxxxxxx (aa) holding an enquiry, in the manner laid down in Rule 16, in every case, which it is proposed to with-hold increments of pay for a period exceeding three years, or with cumulative effect for any period or so as to adverse affect the amount of pension payable to him or in which the disciplinary authority is of the opinion that such inquiry is necessary.” A perusal of the aforesaid rule would indicate that Rule 17 (aa) provides that no order imposing any of the penalties specified in clause (i) to (iii) of rule 14 shall be passed except in the manner provided therein. In the instant case, though the order of penalty that has been ultimately awarded to the petitioner is that of stoppage of one grade increment without cumulative effect, but its timing is such that if it is allowed to be implemented the way respondents have done so, it results into a major penality. This is so because the penalty order was passed on 25.1.2001, which was when the petitioner had been left with less than a year to attain the age of superannuation as he was due to retire from service on 30.9.2001 and his next increment was to 5 became due on 1.9.2001. Rule 17 (aa) of the Rules of 1958 clearly provides that no order imposing such penalty, which would adversely affect the amount of pension payable to Government servant shall be imposed except after holding an enquiry in the manner laid down in Rule 16. In other words, by virtue of the fact that such penalty, which would have adverse affect on the Government servant even after his retirement, has been treated as major penalty, therefore, the insistence of rule making authority for adherence to the procedure contained in Rule 16 for awarding such major penalty. It is therefore that in order to take care of such an anomalous situation, the Department of Personnel has clarified in its circular that if under Rule 17, the penalty of stoppage of annual grade increment without cumulative effect adversely affects the amount of pension payable to a government servant , in that event, such penalty should remain operative only till the time Government servant retires from service and not thereafter. This would mean that the annual grade increment which was withhold, would stand restored back to his pay for the purpose of pension and other retiral benefits. Thus, even if the respondents in the present matter has taken disciplinary action against the petitioner under Rule 17 of the CCA Rules, the controversy in the 6 present case can be resolved by directing them to keep the order of penalty effective against the petitioner only till he retired i.e. 30.9.2001 and compute his retiral benefits on the basis of his last pay on that day inclusive of the amount of last annual grade increment, which had otherwise become due to him on 1.9.2001. In the result, this writ petition is allowed in part with aforesaid directions. The petitioner shall be entitled to all consequential benefits with interest @ 6% per annum. Compliance of the judgment be made within three months from the date copy of this judgment is produced before the respondents. (MOHAMMAD RAFIQ)J. A.Arora/- Item No.23.