CW2373/2003 // 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.2373/2003 Kalyan Dev Sharma Vs. Rajasthan Civil Services appellate Tribunal, Jaipur (Rajasthan) through its Registrar and Others Date of Order ::: 18.12.2010 Present Hon'ble Mr. Justice Mohammad Rafiq Shri Rajendra Prasad, Counsel for petitioner Shri S.D. Khaspuria, Additional Government Advocate for respondents #### //Reportable// By the Court:- This writ petition has been filed by petitioner with prayer that order dated 04.02.2003 passed by Rajasthan Civil Services Appellate Tribunal, Jaipur, in Appeal No.2875/2001, may be set-aside and petitioner be declared entitled to full salary and allowances after date of his conviction i.e. 23.12.1981 till date of his superannuation i.e. 28.02.1993 and thereafter full pension and other retiral benefits viz. Gratuity, commutation etc. along with interest at bank rate. In alternative, it has been prayed that respondents be directed to pay provisional pension as contemplated under Rule 170-A of Rajasthan Service Rules, 1951 or Rule 90 of Rajasthan Civil Services (Pension) Rules, 1996 with all arrears from date of superannuation till final decision of Criminal CW2373/2003 // 2 // Appeal filed by him against order of conviction. Factual matrix of case is that petitioner was appointed with respondents as 'vaidya' by order dated 14.07.1956. While he was in service of Government, a criminal case was registered against him for offence under Sections 302 and 307 IPC at Police Station Khatushyamji. It was on that account that petitioner was placed under suspension by competent authority by order dated 04.08.1981. Petitioner faced trial and ultimately he was convicted by judgment of District & Sessions Judge, Sikar, dated 23.12.1981 and he was sentenced to undergo life imprisonment. Aggrieved thereby, petitioner filed criminal appeal no.7/1982 in which sentence awarded to petitioner was suspended by Division Bench of this Court and said appeal is still pending. While petitioner is still under suspension, he, upon attaining age of superannuation, retired from service on 28.02.1993 and his duly prepared pension case was sent to Director, Pension & Pensioner's Welfare, Jaipur, which, however, declined to grant pension on premise that so long as petitioner was not acquitted in criminal case, he would not be entitled to pension. Shri Rajendra Prasad, learned counsel for petitioner, has argued that while deciding application under Rule 169 of RSR or for that matter, Rule 6 of Rules of 1996, pension of retired government servant can be legitimately withheld CW2373/2003 // 3 // only for reason of post retirement conduct. Learned counsel in this connection referred to Rule 169 of RSR to argue that said provision provides that 'future good conduct' shall be an implied condition of every grant of pension. The pension sanctioning authority may, by order in writing, withhold or withdraw a pension or part thereof whether permanently or for a specified period, if pensioner is convicted of a serious crime or is found guilty of grave misconduct. Sub-rule (1) of Rule 169 of RSR thus postulates a condition of good conduct for grant of pension which presupposes his retirement. If a government servant has already been convicted during service, neither provisions of Rule 169 nor Rule 6 of Rules of 1996 would apply to his case. In present case, petitioner was suspended on 04.08.1981 pending investigation; he was convicted on 23.12.1981 and thereafter he retired on 28.02.1993. Learned counsel argued that although respondents have dismissed petitioner from service on basis of his conduct which led to his conviction but they did not dismiss him and rather paid him subsistence allowance till his superannuation. They thereafter cannot decide not to pay his pension because conviction in any case is subject matter of challenge in appeal and not final conviction. It is contended that Rule 170 of RSR has also no application to facts of this case as criminal case in which petitioner was convicted pertained to CW2373/2003 // 4 // period much prior to date of retirement and the year in which he was convicted was much before his retirement. It is contended that pendency of criminal appeal of petitioner against order of his conviction cannot be treated as pendency of criminal case against him. Petitioner in such a case is entitled to provisional pension under Rule 170-A of RSR or for that matter, Rule 90 of Rules of 1996. It is contended that so far conviction of pensioner is concerned, order of conviction was passed on 23.12.1981 merely four months after his date of suspension on 04.08.1981. Respondents were therefore liable to invoke provisions of Rule 54 of RSR. Thereafter respondents were duty bound to revoke his order of suspension. Subject to passing of order in criminal appeal, respondents were also duty bound to pass appropriate order under Rule 54 of RSR. Respondents illegally continued petitioner under suspension up to date of superannuation. Petitioner is entitled to be treated on duty throughout period of suspension and further whole salary and allowances for said period as contemplated by Rule 54(2) of RSR. It is therefore prayed that writ petition be allowed. Per contra, learned counsel for respondents opposed writ petition and submitted that 'conviction' referred to in Rule 169 of RSR appears in sub-rule (2) of that Rule and that sub-rule (2) has to be independently examined. It is contended that words 'future good conduct' which figures in CW2373/2003 // 5 // sub-rule (1) cannot be read out of context and cannot be so interpreted as to frustrate very intention of rule making authority. Same scheme has been reiterated in rule 6 of Pension Rules. So far as conviction is concerned, there cannot be any distinction on basis of pre-retirement conviction or post retirement conviction. It is therefore prayed that writ petition be dismissed. I have given my anxious consideration to rival submissions of learned counsel for parties and perused material on record. Indisputably petitioner in present case was convicted by judgment dated 23.12.1981 and his status is that of convict and was continuously so till he retired. So far order of conviction has not been reversed or set-aside and appeal filed by petitioner there-against is still pending. Mere fact that respondents did not decide to dismiss or remove petitioner on basis of his conviction despite fact that they could do so in view of Rule 19 of Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 read with Article 311 of the Constitution, does not debar respondents from deciding to discontinue his pension on basis of conviction because there cannot be any estoppal against statute. Word 'future good conduct' referred to in sub-rule (1) of Rule 169 of RSR cannot be interpreted out of context because sub- rule (1) deals with cases where pension has already been sanctioned and then is sought to be withheld CW2373/2003 // 6 // or withdrawn if pensioner is convicted in a serious crime or found guilty of a serious misconduct. Sub- rule (2), however, provides that where a pensioner is convicted of a serious crime by a court of law, action under clause (1) shall be taken in the light of judgment of court relating to such conviction. Sub-rule (3) then deals with those cases which do not fall in scope of sub-rule (2) to provide that if competent authority under clause (1) considers that pensioner is prima facie guilty of grave misconduct, it shall, before passing an order under clause (1), serve upon pensioner a notice specifying action proposed to be taken against him and ground on which it is proposed to be taken and calling upon him to submit, within fifteen days of receipt of such notice of such further time not exceeding fifteen days as may be allowed by pension sanctioning authority, such representation as he may wish to make against the proposal. In my considered view, all those three provisions shall have to be construed harmoniously in such a manner so as to make the scheme of rule workable, rather than picking up of one part of rule in isolation and reading the same against another part of rule or one rule against another sub-rule so as to hold that those convicted prior to date of retirement, in contradistinction to those whose conviction orders have been passed after retirement, would be entitled to pension and other retiral benefits, notwithstanding disqualification attached to them. CW2373/2003 // 7 // In order to appreciate rival contentions it shall be apposite to reproduce here under provisions contained in Rule 169 of the RSR and Rule 6 of Pension Rules, 1996:- “169. Good conduct as a condition for the grant of pension.- (1) Future good conduct shall be an implied condition of every grant of pension. The pension sanctioning authority may, by order in writing, withhold or withdraw a pension or part thereof whether permanently or for a specified period, if the pensioner is convicted of a serious crime or is found guilty of grave misconduct:- Provided that no order shall be passed under this clause by an authority subordinate to the authority competent to make an appointment to the post held by the pensioner immediately before his retirement from service. (2) Whether a pensioner is convicted of a serious crime by a court of law, action under clause (1) shall be taken in the light of the judgment of the court relating to such conviction. (3) In a case not falling under clause (2), if the competent authority under clause (1) considers that the pensioner is prima facie guilty of grave misconduct, it shall before passing an order under clause (1),- (a) serve upon the pensioner a notice specifying the action proposed to be taken against him and the ground on which it is proposed to be taken and calling upon him to submit within fifteen days of the receipt of the notice or such further time not exceeding fifteen days as may be allowed by the pension sanctioning authority, such representation as he may wish to make against the proposal, and (b) take the representation, if any, submitted by the pensioner under clause (1) into consideration. (4) Where the authority competent to pass an order under clause (1) is the Governor, the Rajasthan Public Service Commission shall be consulted before passing the CW2373/2003 // 8 // order. (5) An appeal against an order under clause (1) passed by any authority other than the Governor, shall lie to the Governor and the Governor shall, in consultation with the Rajasthan Public Service Commission pass such orders on the appeal as he deems fit. 6. Pension subject to future good conduct (1) (a) Future good conduct shall be an implied condition of every grant of pension and its continuance under these rules. (b) The appointing authority may, by order in writing, withhold or withdraw a pension or a part thereof, whether permanently or for a specified period, if the pensioner is convicted of a serious crime or is found guilty of grave misconduct. Provided that where a part of pension is withheld or withdrawn, the amount of such pension shall not be reduced below the amount of rupees three hundred per mensem. (2) Where a pensioner is convicted of a serious crime by a Court of Law, action under sub rule (1) shall be taken in the light of the judgment of the court relating to such conviction. (3) In a case not falling under sub-rule (2), if the authority referred to in sub- rule (1) considers that the pensioner is prima facie guilty of grave misconduct, it shall before passing an order under sub rule (1), (a) serve upon the pensioner a notice specifying the action proposed to be taken against him and the ground on which it is proposed to be taken and calling upon him to submit, within fifteen days of the receipt of the notice or such further time not exceeding fifteen days as may be allowed by the appointing authority, such representation as he may wish to make against the proposal; and (b) take into consideration the representation, if any, submitted by the pensioner under clause (a). (4) Where the authority competent to pass an order under sub rule (1) is the Governor, the Rajasthan Public Service Commission shall be consulted before the CW2373/2003 // 9 // order is passed. (5) An appeal against an order under sub rule (1), passed by any authority other than the Governor, shall lie to the Governor and the Governor shall, in consultation with the Rajasthan Public Service Commission, pass such orders on the appeal as he deems fit. A somewhat similar issue arose for consideration before this Court in Shri Bhanwar Lal Agarwal Vs. The State of Rajasthan and Another – S.B. Civil Writ Petition No.6164/1998, decided on 22.11.2010. Argument therein was that incident in regard to which petitioner was convicted related to year 1978 and FIR thereabout against the government servant concerned was registered on 22.08.1981 on the basis of which he was convicted on 13.09.1994. However, in the meantime the said government servant stood retired from service on attaining age of superannuation on 31.10.1991. Argument that was raised was that since according to Rule 6 of Pension Rules, pension can be withheld or discontinued on the basis of 'future good conduct', therefore action of the government in withholding pension is illegal. In those facts it was held as under:- “Upon hearing learned counsel for parties and perusing impugned order, I find that although it may be a fact that incident, on the basis of which petitioner was convicted, relates to year 1978 and FIR thereof was registered against him on 22.08.1981 and he was thereafter retired from service on 31.10.1991, but he was convicted for aforesaid offence by CW2373/2003 // 10 // judgment of the court dated 13.09.1994. Order of conviction has admittedly been passed after retirement of petitioner. Rule 6 of Rules of 1996 inter-alia provides that future good conduct shall be an implied condition of every grant of pension and its continuance under the Rules of 1996. Appointing authority may by order in writing withheld or withdraw pension or part thereof; the appointing authority may, by order in writing, withhold or withdraw a pension or a part thereof, whether permanently or for a specified period, if the pensioner is convicted of a serious crime or is found guilty of grave misconduct. While it is true that clause (a) of sub-rule (1) of Rule 6 of Rules of 1996 provides that 'future good conduct' shall be an implied condition of every grant of pension and its continuance but at the same time clause (b) thereof also provides that appointing authority may, by order in writing, withhold or withdraw a pension or part thereof either permanently or for a specified period, if pensioner is convicted of a serious crime or is found guilty of grave misconduct. While latter part namely, 'guilty of grave misconduct' may relate to order of penalty i.e. passed in proceedings which might have been pending in the case of a retiring government servant; the former part, namely, 'convicted of a serious crime' is attracted in a situation where retired government servant is convicted and sentenced by a court of law. Now clause (b) of sub-rule (1) of Rule 6 of Rules of 1996 shall apply in case of retired government servant because it provides for withholding or withdrawing of pension or part thereof, which can be granted only to retired government servant. Argument of petitioner that phraseology used in sub-rule 1(a) of Rule 6 of Rules of 1996 with regard to 'future good conduct' show that on the basis that conviction order was passed in 1994 for incident which took place in 1978, entire Rule 6 include sub-clause (b) of its sub-rule (2) can not be applied, is fallacious because in CW2373/2003 // 11 // every case of retired government servant order of conviction would certainly be passed after his retirement and that is when question of withholding or withdrawing pension would arise. Sub-Rule 1(b) of Rule 6 of the Rules of 1996 has to be therefore independently applied in a situation like this.” Although issue that was involved in aforesaid case was slightly different but I am citing said judgment only for the purpose of showing that phraseology used 'future good conduct' cannot be interpreted so as to hold that pension can be withheld only if conduct which led to conviction is based on some such act of government servant which took place after his retirement. In present case, petitioner retired on 28.02.1993 and Pension Rules came into force with effect from 01.10.1996, therefore provisions of Rule 169 of RSR would apply and this matter shall have to be therefore decided on basis of Rule 169 of RSR. Even according to sub-rule (1) of Rule 169 of RSR, conduct for which petitioner was convicted does not pertain to period subsequent to his retirement. In other words, incident on basis of which petitioner was convicted admittedly took place prior to his date of retirement when he was in government service and order of conviction was passed much earlier than the date of his retirement. Can it therefore be said that he stands on better footing than those who are convicted later than date of retirement? Making payment of subsistence allowance CW2373/2003 // 12 // to petitioner and not passing order of his dismissal or removal despite his conviction, may have been an act of benevolence on part of employer in this case, but, for that reason, this court would not be justified into passing an order requiring respondents to pay pension and other retiral benefits to a retired government servant, who is admittedly convicted and in the face availability of those convicts, who are denied pension whose conviction takes place after their retirement. If that were to be so, this would amount to treating dissimilarly a class of retirement government servants who are otherwise similarly situate in that, who are both convicted and retired. Withholding or refusal of pension in both the cases is dependent on factum of conviction regardless of fact whether the incident for which he was convicted pertains to period anterior to date of retirement or whether the conviction order is passed before or after the date of retirement. Examining the matter from another angle, it is to be noted that even if a comparison is made between Rule 169 of RSR and Rule 6 of Pension Rules, it is to be found that while sub-rule (1) of Rule 169 of RSR has been split into two parts; in sub-rule (1) of Rule 6 as clause (a) and (b) and rest of provisions from sub-rule (2) to 5 in Rule 6 (supra) are exactly the same as they were in Rule 169. Scheme of this Rule shows that there can be two grounds on which pension can be withheld or CW2373/2003 // 13 // withdrawn, whether permanently or for a specified period, namely, (1) if retired government servant concerned is convicted of serious crime; (2) or if he is found guilty of grave misconduct. In this latter category, however, when order withholding or withdrawing pension is passed, according to sub- rule (3), the competent authority is required to serve upon the government servant a notice specifying action proposed to be taken and calling upon him to submit his representation within 15 days. But in the case of former category, where such order is founded on the basis of conviction, such a requirement has not been insisted upon. It is however subject to the rider that no such order shall be passed by a authority competent to making an appointment to hold the post by government servant concerned immediately before his retirement from service. Sub-rule (2) however, clearly contends that where a pensioner is convicted of a serious crime by a court of law, action under sub- rule (1) shall be taken in the light of judgment of the court relating to such conviction. Contention that pendency of appeal of petitioner against order of his conviction cannot be taken pendency of criminal case against him, is wholly misconceived because petitioner now suffers conviction although it is another matter that despite such conviction the government bestowed upon him favour by allowing him to continue in service, though under suspension paying him subsistence allowance and not dismissing CW2373/2003 // 14 // or removing him from service on that basis. But this court has to proceed on footing that he could have been dismissed and if dismissed, whether he would have been entitled for pension. Answer to that would be 'no'. Another argument that pendency of criminal appeal of petitioner against order of his conviction cannot be taken as pendency of criminal case against him and on that basis Rule 170 of RSR cannot be invoked, is also equally misconceived. When already petitioner stands convicted, there can be no question in law of now assuming pendency of criminal appeal as pending criminal case against him so as to justify payment of pension. Provisional pension under Rule 170-A (1) of RSR read with Rule 90 of Rules of 1996 postulates continuation of proceedings whether disciplinary proceedings or criminal case and on that basis withholding payment of provisional pension but here the criminal trial commenced and therein petitioner was convicted much before retirement. Therefore pendency of appeal filed against order of his conviction cannot be treated pending proceedings either in the meaning of Rule 170 or Rule 170-A of RSR. This is so because once conviction is made, it has to be treated as final conviction for purpose of Rules 169, 170 and 170-A of RSR and mere suspension of sentence does not have the effect of wiping out or obliterating effect of conviction or disqualification attached thereto. CW2373/2003 // 15 // I am not inclined to accept the argument that respondents should have immediately on conviction of petitioner pass order under Rule 54 of Rajasthan Service Rules and that he should be treated in continuous duty despite suspension in the meaning of that sub-rule (2) thereof. Mere continuation of petitioner in service, though under suspension, cannot justify his demand for treating the entire intervening period as spent on duty for purpose of that rule for payment of full salary and allowances. For all the afore-stated reasons, I do not find any merit in this writ petition and it is hereby dismissed. (Mohammad Rafiq) J. //Jaiman//