By this writ petition, a challenge is made to the Rule 90(1)(c) of the Rajasthan Civil Services Pension Rules, 1996 (in short "the Rules of 1996").

2. Learned counsel submits that Rule 90(1)(c) is hit by the Payment of Gratuity Act, 1972 (in short "the Act of 1972"). The payment towards gratuity flows from the Act of 1972 thus no rule or regulation can be made offending any of the provisions of the Act of 1972. Rule 90(1)(c) of the Rules of 1996 is offending Section 4(6) of the Act of 1972 thus should be struck down. A reference of Section 14 of the Act of 1972 has also been given. It is to show that provisions of the Act or rules made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than this Act. If Rules of 1996 have been made inconsistent to the provisions of the Act of 1972 then should not be applied. A reference of judgment of the Apex Court in the case of Chairman-cum-Managing Director Mahanadi Coalfield Limited v. Rabindranath Choubey, reported in 2014(1) S.C.T. 267 : (2013) 16 SCC 411 is given. Therein, the case has been referred to the Larger Bench looking to the different views of the Apex Court on the same issue. Further reference of judgments of the Apex Court in the cases of Government (NCT of Delhi) & Anr. v. K.Srivatsan, reported in 2014(4) S.C.T. 688 : (2014) 15 SCC 476, State of Kerala & Ors. v. M. Padmanabhan Nair, reported in (1985) 1 SCC 429, Jaswant Singh Gill v. Bharat Cooking Coal Ltd. & Ors., reported in 2007(1) S.C.T. 236 : (2007) 1 SCC 663 apart from State of Jharkhand & Ors. v. Jitendra Kumar Srivastava & Anr., reported in 2013(4) S.C.T. 429 : AIR 2013 SC 3383 has been given. Therein, a rule made by an establishment offending provisions of the Act of 1972 is not to be applied. The case in hand is covered by those judgments.

3. Rule 90(1)(c) of the Rules of 1996 denies benefit of gratuity during pendency of the departmental inquiry or a criminal case. The Apex Court has considered Section 4(6) in reference to the similar regulation and finding it to be inconsistent with Section 4(6), regulations were struck down. The petitioner herein has already retired but is facing criminal case. During pendency of the trial, benefit of gratuity has been denied in reference to the Rule 90(1)(c) of the Rules of 1996.

4. Learned counsel has made further reference of Annexure-14 and 15 where inconsistent stand has been taken by the Government. At the first instance, benefit of gratuity pending criminal case has been allowed but the department has denied it in reference to Rule 90(1)(c) of the Rules of 1996.

5. We have considered the submission made by learned counsel for petitioner and perused the record.

6. A challenge to the Rule 90(1)(c) of the Rules of 1996 has been made. The said provision is quoted thus for ready reference:

"90. Provisional pension where departmental or judicial proceedings may be pending

(1)(a) In respect of a Government servant referred to in sub rule (4) of Rule 7, the Director, Pension Department, Rajasthan, shall authorise the provisional pension equal to the maximum pension which would have been admissible on the basis of qualifying service upto the date of retirement of the Government servant, or if he was under suspension on the date of retirement upto the date immediately preceding the date on which he was placed under suspension.

Provided that in cases where pension case could not be prepared finally for one or the other reason the appointing authority shall sanction provisional pension in Form 33 after following procedure laid down in sub-rule (3) of Rule 86 and send the case to the Director, Pension for issue of Provisional Pension Payment Order till the Departmental Enquiry is finalised.

(b) The provisional pension shall be authorised by the Director, Pension Department, during the period commencing from the date of retirement u