The pension granting authority has no power to stop the pension if no departmental or judicial enquiry is pending against the pensioner on the date of retirement.

U.P.Singh, J.

1. The petitioner, who retired from the Health Services as Regional Deputy Director on the 30th June, 1986, has claimed payment of full and final pension and gratuity with interest on the delayed payments. Before his retirement, the petitioner submitted all his papers on the 28th June, 1986, regarding pension, gratuity and other retirement benefits. On the 25th January, 1988 the office of the Accountant General, Bihar, issued payment order granting 90% provisional pension which is contained in Annexure 1 to this application.

2. The petitioner started his career as Civil Assistant surgeon in the year 1956 and was promoted, as Civil Surgeon is the year 1985. The petitioner retired from the service on the 30th June, 1986, as Regional Deputy Director, Health Services.

3. Repeatedly, the petitioner requested for payment of full and final pension and gratuity in several communications addressed to the respondents, but he received no reply. The admitted fact is that no recovery proceeding was started or is pending against the petitioner under Rule 43 of the Bihar Pension Rules.

4. After one year of the petitioners retirement, the Deputy Secretary (Health) issued a memo in May, 198;, calling upon the petitioner to explain certain charges which were based on a D.O. letter dated the 10th February, 1986, issued by the Commissioner, North Chotanagpur Division. A copy of the chargesheet was also enclosed alleging that the petitioner was guilty of violating the Government instruction prohibiting an officer is make any appointment within two years prior to his retirement.

5. In view of the sole legal question raised by Mr. Saran, the learned Counsel for the petitioner, that, in view of the Resolution of the Finance Department dated 31st July, 1980 the pension greeting authority shall have no power to stop the pension, there is no necessity of considering the validity of the charges, although the same has been explained. It was submitted that the petitioner was competent to make appointments and that the appointments of the two drivers and one sweeper were emergent. These appointments are made on ad hoc basis and only temporary for a period of three mouths, only because of the prevailing emergent situation so that she Ambulance service and the work of the Family Planning at the Sub-Center and the Referral Hospital at Bhoraich Nagar which required a sleeper as well could function properly end smoothly in the interest of the general public, The emergent situation was also highlighted by the local representatives of the public. The persons appointed were duly registered in the Employment; Exchange and their applications were also available in this office of she Civil Surgeon. The petitioner had thus sent a detailed reply to the charges but he received no reply from the Health Department.

6. In support of the contention, the learned coarser for the petitioner referred to and re-laid upon Resolution No. 3014-F., dated the 3ist July, 1980, of the Finance Department, of which para 7 (kha) is important to be notices for the purpose of deciding the question, raised herein. The English translation has been forwarded by the learned Counsel for the petitioner:

If till the date of retirement of a Government servant, any kind of departmental enquiry, criminal case, judicial enquiry, etc. have been started against the Government servant then in that situation the pension granting authority shall have no power to stop the pension in any circumstance whatsoever. It; further provides that Rule 43 of the Bihar Pension Rules is a statutory rule and, therefore, any action in contravention of the name by different department to stop pension by adopting different proceedings as also the necessity of obtaining integrity certificate from the Vigilance Department would stand automatically revoked.

7. On the other hand, the learned Counsel for the State relied upon Rule 43 of the Bihar Pension Rules, 1950 and contended that the Provincial Governme