Nani Tagia, J. – Heard Mr. Alok Kumar, learned counsel appearing on behalf of the petitioner; Mr. Madhukar Mishra, learned AC to SC-16 appearing on behalf of the State and Mr. Arun Kumar Arun, learned counsel appearing on behalf of the Accountant General, Bihar.

2. The petitioner, who retired on 31.07.2020 on attaining the age of superannuation from the post of Programme Officer, Education Department, has filed this writ petition seeking a direction to the respondent authorities to pay the remaining retirement benefits of the petitioner, i.e., 10% pension and 10% gratuity, which has been withheld by the respondents without any reason and without there being any pendency of departmental proceeding or criminal proceeding against the petitioner.

3. On retirement of the petitioner on 31.07.2020 from the post of Programme Officer, Education Department, respondent no.3- the Director (Administration)-cum-Additional Secretary, Education Department, vide letter no. 2/Pen5- 36/2020/414, written to the Principal Accountant General (Accounts and Estate), had sanctioned 90% of the petitioner’s pension and gratuity, respectively.

4. Pursuant thereto and on further issuance of pension payment order by the Accountant General, Bihar, the petitioner has received 90% of gratuity and is receiving 90% of the pension.

5. The grievance of the petitioner in this writ petition is that he is entitled to receive 100% pension and gratuity since no departmental proceeding or criminal proceeding is pending against the petitioner.

6. The contention of the petitioner is that as per Rule 43(b) and 43(c) of the Bihar Pension Rules, 1950, 10% of the pension as well as gratuity can be withheld by the respondent authorities only when there is a departmental proceeding pending against the retired employee. Learned counsel for the petitioner submits that since there is no departmental proceeding pending against the petitioner, withholding of 10% of the petitioner’s pension and gratuity by the respondent authorities is illegal and accordingly respondents are liable to be directed to pay the remaining 10% of the pension as well as gratuity to the petitioner.

7. The respondents have contested the case by filing three sets of counter affidavits, 1st by Naresh Kumar, under-Secretary, Education Department, 2nd by respondent no.5- the District Education Officer, Sitamarhi and 3rd by respondent no.6- the Accountant General, Bihar, Patna.

8. Though, in the counter affidavit filed by Naresh Kumar, under-Secretary, Education Department, it has not been indicated that on behalf of which respondent the said counter affidavit has been filed, but Mr. Madhukar Mishra, learned counsel representing the respondent nos. 1 to 5 has submitted that the counter affidavit filed by Naresh Kumar, under- Secretary, Education Department is on behalf of the respondent no.3, who happens to be the disciplinary authority of the petitioner, while the petitioner was in service holding the post of Programme Officer.

9. Taking the counter affidavit filed by Naresh Kumar, under-Secretary, Education Department to have been filed on behalf of the respondent no.3 as submitted by the learned State counsel as above, the respondent no.3 in paragraph nos. 10, 11, 12 and 13 has stated as under: –

“10. That so far as the grievance of the petitioner for making payment of balance 10% pension and 10% gratuity is concerned, in this regard, it is humbly submitted due to pendency of charge against the petitioner regarding forwarding the selection list of four general caste volunteers of Muslim community to the district against the guidelines in the selection of Talimi Makraj Education volunteers.

11. That in view of above factual and circumstances, it is humbly submitted that as soon as the necessary decision is taken on the levelled charge against the petitioner, immediately thereafter, consequential action/steps will be taken in accordance with law.

12. That apart from above, it is humbly submitted that petitioner has claime