The petitioner had attained the age of superannuation on 30.09.1994 while holding post of Executive Engineer. Before his retirement, on 27.09.1994 he was served with a charge sheet under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (in short, 'the CCA Rules of 1958') wherein certain allegations were levelled against him relating to not recovering certain amount from the contractor in the period from January, 1985 to May, 1986. Enquiry was conducted jointly along with co-delinquents and the said enquiry culminated into an order of punishment passed against the petitioner of stopping 10% of his pension for five years vide Order dated 09.11.1998. The order was passed after seeking sanction from the Governor. It was further directed that an amount of Rs.25688/- be recovered from the amount of his pension gratuity. The Junior Engineer, who was co-delinquent, was, however exonerated of the charges.

2. Learned counsel for the petitioner has, while assailing the departmental enquiry proceedings as also assailing the action being highly belated, confined his arguments to the non compliance of the provisions of Rule 170 of the Rajasthan Service Rules of 1951 as they existed at the time of retirement and were applicable to the cause of the petitioner. It is a submission that under Rule 170, while departmental enquiry initiated before retirement, could be continued but the punishment could be awarded by the Governor only after providing an opportunity of hearing to delinquent for proposed order of reduction of pension. He has invited attention of this Court to the clarification issued by the State Government, which has been included as part of the Rules under Rule 170, which reads as under:-

Rule 170 Clarification :-

"According to proviso (a) of Rule 170 of the Rajasthan Service Rules, departmental proceedings if instituted while the officer was in service, whether before his retirement or during his re-employment, shall, after the final retirement of the officer, be deemed to be proceedings under the said rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the officer had continued in service. A question has been raised whether in respect of an officer, whose case falls within the purview of the aforesaid proviso and proceedings against whom were instituted by an authority subordinate to the Governor, order for withdrawals withholding of pension can be passed by the subordinate authority on the conclusion of the proceedings, or the authority should refer the case to the Governor for final orders. The matter has been considered and it is clarified that the function of the Disciplinary Authority in respect of departmental proceedings referred to in Rule 170 is only to reach a finding on the charges and to submit a report recording its findings to the Government. It is then for the Government to consider the findings and take a final decision under rule 170 of Rajasthan Service Rules. In case Government decide to take action under Rule 170 of Rajasthan Service Rules in the light of the findings of the Disciplinary Authority, the Government will serve the person concerned with a show-cause notice specifying the action proposed to be taken under Rule 170 of Rajasthan Service Rules and the person concerned will be required to submit his reply to the show-cause notice within such time as may be specified by the Government. The Government will consider the reply and consult the Rajasthan Public Service Commission. If as a result of such consideration in consultation with the commission, it is decided to pass an order under Rule 170 of Rajasthan Service Rules, necessary orders will be issued in the name of the Governor."

3. It is submitted that receiving pension is fundamental right of an employee and the same cannot be taken away without following due procedure of law. The punishment awarded to the petitioner is not under the Rules of 1958 a