1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.350/2008 Smt. Sua Devi Vs. State Date of order : 26/11/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri S.K. Singodiya for the petitioner. Shri S.D. Khaspuria, Addl. Govt. Counsel for the respondents. ****** This writ petition was filed by Smt. Sua Devi with the prayer that the respondents be directed to grant her family pension and other retiral benefits in view of the service rendered by her husband who died on 16.12.2006. The late husband of the petitioner was working with the respondents on the post of Teacher. He was involved in a criminal case for offence u/s. 302 of IPC and convicted by the Court vide judgement dated 26.5.1994. He was then suspended by the competent authority vide order dated 19.7.1994. Even when he was still under suspension, his date of superannuation reached and the petitioner represented for his reinstatement and retiral benefits. The District Education Officer, Secondary, Bharatpur by order dated 10.9.01 directed that he shall be reinstated in service with effect from the date of his retirement dated 31.10.2001. It was thereafter that late husband of the petitioner was granted provisional pension but other retiral dues such as gratuity, provident fund and 2 difference of salary etc. were not paid. Shri S.K. Singodiya, learned counsel for the petitioner submits that late husband of petitioner unfortunately died on 16.12.2006. Petitioner made number of representations to the respondents, but when no action was taken, she served the respondents notice for demand of justice. The respondents have eventually by order dated 24.10.2007 granted her family pension and she is presently in receipt of family pension. It is contended that husband of the petitioner filed D.B. Criminal Appeal No.278/1994 and that now because he has died, his appeal would abate and the conviction order by his death, having attained finality. It is argued that the respondents cannot assume that such conviction has become a final conviction. In that event, they also cannot withheld the terminal/retiral dues. It is therefore prayed that the writ petition be allowed and all such benefits which were withheld by the respondents be paid together with interest @ 18% per annum. Shri S.D. Khaspuria, learned Addl. Government Counsel opposed the writ petition and submitted that so long as the conviction remains, no such retiral benefits are liable to be paid in terms of Rule 170 read with Section 169 of the Rajasthan Service Rules. It is submitted that petitioner is free to make an application u/s. 394 of the Code of Criminal Procedure for prosecuting the 3 appeal and obtain an order of acquittal of her late husband, only then she can claim the retiral benefits etc. It is contended that the family pension has already been granted to the petitioner with effect from 24.10.2007 after the death of the late husband of the petitioner on 16.12.2006. There is no merit in this writ petition, therefore, it be dismissed. Having heard the learned counsel for the parties and perused the material on record, I find that mere fact that the respondents did not dismiss the late husband of the petitioner despite his conviction, cannot be a reason to hold that Rule 169 of the Rajasthan Service Rules would not apply to his case. The conviction so long as it is not altered or reversed continue to remain in existence and mere allowing of application of suspension of sentence before this Court does not have the effect of obliterating or wiping out the conviction. Its effect has to be therefore accepted in the light of the said rule. However, the respondent by way of act of belovence decided to not dismiss or discontinue the petitioner in service albeit under suspension till he attains the age of superannuation and thereafter, also paid to him provisional pension. It is therefore that they have granted family pension to the petitioner as well. In the facts of the case, the other 4 withheld benefits cannot be paid to the petitioner so long as the order of conviction remains. As regards the submission that the appeal would abate, as rightly argued by the learned Additional Government Counsel, the petitioner is free to make a suitable application in the criminal appeal to continue to prosecute the same for obtaining leave of the Court citing the reason that in case of his eventual acquittal, the petitioner would be entitled to retiral benefits which have been withheld by recourse to Section 169, supra. This writ petition is therefore disposed of, however, with the aforesaid liberty to the petitioner. It goes without saying that in the event of eventual acquittal of late husband of the petitioner, she would be entitled to all the withheld benefits. (MOHAMMAD RAFIQ), J. RS/-