S.B.Sinha, J.

1. In this writ petition the petitioner prays for issuance of a writ of or in the nature of mandamus directing the respondents to pay full pension to the petitioner.

2. The facts of the case lie in a very narrow compass.

3. The petitioner who was in the employment of the State of Bihar reached his age of superannuation on 1st May 1979. The petitioner was not given his pension an gratuity legally due to him. The petitioner approached this Court in its writ jurisdiction which was registered as C.W.J.C. No. 2616 of 1979 and was disposed of on 7th December 1979 by an order contained in Annexure 2 to the writ petition.

4. As there has been violation of the direction contained in the aforementioned judgment dt. 7th December 1979 as contained in Annexure 2 to the writ petition, the petitioner filed an application for initiating a proceeding of contempt of Court which was registered as Miscellaneous Judicial Case No. 147 of 1980. The said case was disposed of by a judgment dt. 10th July, 1980. The said judgment is contained in Annexure 3 to the writ petition. In the aforementioned judgment dt. 10th July, it was held as follows:-

It is, therefore, necessary to see as to the circumstances in which Rule 43(b) is applicable. It is accepted that no departmental proceeding is pending against the petitioner. So far as judicial proceedings are concerned it has been clearly stated in the explanation to this rule that judicial proceeding shall be deemed to be instituted in case of criminal proceedings on the date on which a complaint is made or chargesheet is submitted to a Criminal Court. It is an accepted position here that neither any complaint has been made nor a chargesheet has been submitted to a Criminal Court. In this situation Rule 43 is clearly inapplicable. Moreover, proviso to Rule 43 envisages inapplicability of the rule to judicial proceedings in respect of an event which had taken place not more than 4 years before the institution of the said proceedings. This appears to be another reason for non-applicability of Rule 43 so far as the case of the petitioner is concerned."

5. It was admitted that the petitioner was granted pension and gratuity to the extent of 75 per cent.

6. On 31st July, 1981, the Finance Department of the State of Bihar issued a circular wherein it was categorically stated that the provisional pension shall be payable in its entirety after a period of two years.

7. According to the State of Bihar, as it appears from its counter affidavit, the said circular will have no application in relation to the persons, who retired on or after 31st March 1980. However, from Clause 20 of the said circular it appears that although the said circular does not apply in its entirety in respect of a person who retired on or after the 31st March 1980 but the prescribed procedures in relation thereto apply to a!l persons whose cases relating to the pension have not then been disposed of. In view of this circular, the learned counsel contends that the petitioner ought to have been paid the entire sum payable to him by way of pension and gratuity.

8. Smt. Indu Prabha Singh, the learned Government Pleader No. (VI), on the other hand, submitted that the petitioner cannot be granted enhanced pension and gratuity in view of the fact that a criminal case is still pending decision, as it appears from Annexure A to the said counter affidavit. From Annexure A to the said counter affidavit it also appears that sanction of prosecution against various persons including the petitioner was granted in relation to a case, the period whereof is 26th July 1965 to 22nd October 1966. The learned Government Pleader No. VI, therefore, contends that in this view of the matter Rule 43 (b) of the Bihar Pension Rules is attracted in the instant case.

9. However, in the counter affidavit the State has admitted that the criminal case has not been disposed of even after a lapse of 17 years. It has further been admitted in the said counter