Harish Kumar, J.—This Court has heard Mr. Anand Ojha, learned Advocate for the petitioner, Mr. Vikash Kumar, learned Standing Counsel-11, Mr. Anil Singh, learned Advocate for the Vigilance and Mrs. Ritika Rani, learned Advocate for the Accountant General.

2. The petitioner superannuated on 31.07.2019 from the post of Assistant Professor while he was working on deputation in MCE Motihari from MIT, Muzaffarpur. Being aggrieved by the inaction of the respondent State officials in not granting the retiral and other consequential benefits, the petitioner invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution seeking direction upon the respondents to ensure payment of all his retiral and other consequential benefits such as gratuity, leave encashment and pension without deduction of 10% and total amount of retiral benefits as per 7th Revised Pay Scale with statutory interest.

3. The brief facts, of the case are that while the petitioner was on deputation at MCE Motihari, he was Principal In charge of the college from 07.12.2011 to 15.01.2017. The Motihari College of Engineering is a State Government owned institution under the administrative control of the Department of Science and Technology, Government of Bihar. When the petitioner was the Principal In charge of the College, he was authorised to conduct some skill development programme in 6 Bordering Blocks of the district under Border Area Development Programme funded by the Central Government. The petitioner was nominated as Principal-cum-Chief Coordinator for conduct of skill development programme. On account of alleged charges of financial irregularities, Vigilance (Patna) P.S. Case No. 27 of 2018 corresponding to Special Case (Vigilance) No. 16/18 was instituted against the petitioner and other accused persons.

4. During the pendency of the aforenoted criminal case the petitioner came to be superannuated on 31.07.2019 and thus the respondent authorities have been pleased to sanction 90% of provisional pension to the petitioner vide order bearing No. 194 dated 20.01.2020. The respondent authorities made it clear that the gratuity, leave encahsment and 10% of pension could not be sanctioned by the competent authorities in view of the provisions of rule 43(c) and 43(d) of the Bihar Pension Rules, 1950 (hereinafter referred to as the ‘Rules, 1950’) on account of pendency of the criminal case.

5. Mr. Anand Ojha, learned Advocate for the petitioner, by pressing the present writ petition has primarily submitted that the rules regarding grant of pension governs under the statutory rules and undoubtedly in the absence of any statutory provisions for retaining the pension, the order passed by the authorities are illegal. Drawing the attention of this Court, especially to rule 43(b) of the Bihar Pension Rules, 1950, he contended that the State Government has the power to withhold or withdraw pension or any part of it when the pensioner is found guilty of grave misconduct either in a departmental proceeding or judicial proceeding. Thus the provision does not empower the State to invoke the said power while the departmental proceeding or judicial proceeding is pending. The power under Rule 43(b) can be invoked only when proceedings are concluded finding guilty and not before. Referring to Rule 43(c) which came into force on 19.07.2012, the learned Advocate further contended that it clearly speaks that where the departmental proceeding or judicial proceeding in which the prosecution has been sanctioned against such government servant, initiated during the service period of the government servant, is not concluded till the retirement of the government servant, the amount of provisional pension shall be less than maximum admissible amount of pension but shall in no case be less than 90%.

6. The issue as to whether the leave encashment of a government employee besides gratuity can be withheld under the provisions of the Bihar Pension Rules in view of statutory p