Provisional pension is mandatory during pending judicial proceedings, while final pension can be withheld until such proceedings conclude.

JUDGMENT :

WP(C) No.03/2023

1) The petitioner has challenged communication bearing No.DULB/A/3165/37682-83 dated 31.10.2022, addressed by respondent No.6 to respondent No.5, whereby respondent No.5 has been asked to keep the pension case of the petitioner in abeyance till further instructions are received from the Administrative Department. The petitioner has also sought a direction upon the respondents to release his pension, cash in lieu of leave salary, death-cum-retirement gratuity and to issue Pension Payment Order in his favour.

2) As per case of the petitioner, while he was working as Executive Officer, Municipal Committee, Yaripora Kulgam on incharge basis, the Government vide order No.364-JK(GAD) of 2022 dated 31.03.2022 ordered his premature retirement by invoking clause (a) of Article 226(2) of the Jammu and Kashmir Civil Service Regulations , 1956 (for short “the CSR”). The petitioner was ordered to retire from service with effect from forenoon of 1st April, 2022 and it was further ordered that the pay and allowance equivalent to three months in lieu of this period would be paid to the petitioner.

3) It has been submitted that in terms of order No.DULB/A/3165/535 of 2022 dated 24.08.2022, issued by respondent No.3, sanction was accorded for authorization of monthly pension and pensionary benefits as admissible under rules in favour of the petitioner. According to the petitioner, the General Administration Department of the Government vide communication dated 07.01.2022, accorded vigilance clearance in favour of the petitioner, whereafter respondent No.6 forwarded the pension case of the petitioner to respondent No.5. However, in terms of impugned communication, respondent No.6 asked respondent No.5 to keep the pension case of the petitioner in abeyance on the ground that the General Administration Department vide communication dated 11.10.2022 has withdrawn the vigilance clearance issued in favour of the petitioner as his name is figuring in FIR No.28/2014 registered with Police Station, Vigilance Organization, Kashmir.

4) It has also been submitted that the petitioner has been continuously representing with the respondents for release of his pension and pensionary benefits but the respondents have not taken any concrete action in the matter, as a result of which the petitioner and his family members are suffering for want of pension. It has been contended that in terms of Article 226(2) of the CSR, the petitioner is entitled to pension from the date of his premature retirement and that the same cannot be deferred. It has been further contended that FIR No.28/2014 registered by P/S VOK against the petitioner is false and frivolous and in the challan arising out of the said FIR, charges are yet to be framed. It has been also contended that mere pendency of challan against the petitioner cannot be a ground for denying pension and pensionary benefits in his favour and that the pension is a right given to an employee, which cannot be taken away by the respondents without the authority of law.

5) The respondents have contested the writ petition by filing their reply thereto, wherein it has been submitted that initially the pension case of the petitioner, upon his premature retirement, was forwarded for settlement to respondent No.5, whereafter Pension Sanctioning Authority i.e. respondent No.3 forwarded the case along with sanction of pension and other pensionary benefits in favour of the petitioner in terms of communication dated 24.08.2022. In the meanwhile, the respondents are stated to have received the impugned communication whereby it was conveyed that vigilance clearance granted in favour of the petitioner has been withdrawn because a case arising out of FIR No.28/2014 of P/S VOK is subjudice.

6) I have heard learned counsel for the parties and perused record of the case.

7) So far as the facts pleaded by the parties are concerned, the same are not in dispute. It is an admitted case that the petitioner has been premature