By the Court.—Heard learned counsel for the petitioner as well as learned Standing Counsel appearing for the respondents and have perused the record. Pleadings have been exchanged and with consent of the learned counsel for the parties, this writ petition is being disposed of at the admission stage.

2. The case of the petitioner is that he has retired from service as Executive Engineer, Irrigation Department of the State Government on 31.7.2010. It is contended that after retirement, though the petitioner has been paid certain amount like leave encashment etc., but pension and other retiral dues have not been paid merely on the ground of a communication dated 2.8.2010 made by the Commissioner, Allahabad Division, Allahabad to the State Government which was with regard to non-utilization of certain funds (not mis-utilization of funds) by the petitioner under some Government scheme. On such ground, it was stated in the said letter that retiral dues be not paid to the petitioner. Challenging the said action of the respondents in not paying the pension and other retiral dues, this writ petition has been filed. A further prayer has also been made to quash the communication dated 2.8.2010 of the Commissioner, Allahabad Division, Allahabad whereby direction has been given that till any final orders are passed on such communication by the State Government the retiral dues of the petitioner be not paid.

3. It is contended by the learned counsel for the petitioner that payment of pension and other post retiral dues cannot be withheld merely because the respondents are intending to initiate the disciplinary proceedings. It is also submitted that although the Governor of the State under Regulation 351-A of Civil Services Regulations reserves his right of withholding or withdrawing the pension or any part of it but that is subject to the further conditions provided under the aforesaid regulation. In the submission of the learned counsel for the petitioner since those ingredients are not satisfied, therefore, the respondents are illegally withholding the pension of the petitioner which is not sustainable in the eye of law.

4. Refuting the submissions of the learned counsel for the petitioner, learned Standing Counsel has submitted that the previous conduct of the petitioner falls under the premise of misconduct and, therefore, the Government has every right to initiate the disciplinary proceeding even after his retirement and on this ground withholding of the pension is justified.

5. We have considered the rival submissions of the learned counsel for the parties and find that for deciding this controversy it would be necessary to see whether the petitioner has any vested right to get pension and other post retiral dues and as to whether the respondents are justified in withholding the pension without there being any proceeding pending prior to retirement or initiated after retirement. Here in the present case, it is not the case of respondents that the petitioner is not entitled to get the pension. In that situation it has to be analysed that if an employee has right to get pension and other retiral dues under the relevant Rules governing the conditions of service, then whether it can be withheld.

6. In the case of Deoki Nandan Shan v. State of U.P., AIR 1971 SC 1409, the Apex Court ruled that the pension is a right and payment of it does not depend upon the discretion of the Government but is governed by the Rules and the Government servant coming within those Rules is entitled to claim pension and grant of pension does not depend upon anyone’s discretion. It is only for the purpose of quantifying the amount, having regard to service and other allied matters, that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was further affirmed by the Apex Court in the case of State of Punjab v. Iqbal