By the Court.—This intra Court appeal is directed against the judgment and order of the learned Single Judge dated 26.9.2013 passed in Writ-A 234 of 2013.

2. The facts relevant for deciding the appeal are as under:

Petitioner who was employed as a Platoon Commander in P.A.C. 42 Bn. Naini, Allahabad retired on attaining the age of superannuation on 31.10.2013, prior his retirement, an order was made by the Commandant, 42 Bn P.A.C. Naini Allahabad dated 22.10.2012, wherein the gratuity payable to the petitioner was withheld because of the pendency of a criminal case being Case Crime No. 2038 of 2004 under Sections 451, 453 120-B IPC and Section 13 of the Unlawful Activities (Prevention) Act, 1967.

3. This order of withholding the gratuity was subjected to challenge by means of the writ petition No. 234 of 2013. The writ Court after considering the Division Bench in the case of State of U.P. v. Jai Prakash, 2014(1) ADJ 207 (DB), has come to the conclusion that there is a provision for withholding the gratuity under the Regulations 351, 351-A and 351-AA as well as Regulation 919-A of the Civil Service Regulation which are admittedly applicable in the case of the petitioner.

4. Sri H.N. Singh, learned counsel for the petitioner submitted that the judgment of the Division Bench in the case of State of U.P. and others (supra) does not lay down the correct law, he would submit that the payment of gratuity to Government servant is payable under U.P. Retirement Benefits Rules 1961 (hereinafter referred to as the Rules ‘1961’). According to the appellant in case of conflict between the Civil Service Regulation and Rules 1961 the later shall prevail.

5. It is further contended that under Rules 1961, there is no provision for withholding the gratuity because of pendency any criminal case and therefore, the Division Bench Judgment which fails to take note of the aforesaid Rule does not lay down the correct law. He placed reliance upon the Division Bench Judgment of the Apex Court in the case of State of Jharkhand v. Jitendra Kumar Srivastava, 2013(3) ESC 554 (SC).

6. We heard the learned counsel for the parties and examined the record of the present appeal.

7. At the very outset, we may record under Rule 2 sub-Rule 2 of the Rules 1961. It is specifically provided that the provisions of the Civil Service Regulation will continue to apply upon the employees who are covered by the same, in so far as the provisions are not in conflict with the Rules 1961. The provision for withholding or otherwise of the gratuity have not been provided under the Rules 1961, the question of any inflict between Rules 1961 and the Civil Service Regulation which confer such a power will not arise.

8. Therefore, we have no hesitation to record that the provisions of Civil Service Regulation in so far they provide a power and the procedure for withholding of the gratuity on retirement of a Government service would continue to apply.

9. Learned counsel for the appellant then contended under Rule 9 of the Rules 1961, a power to withhold gratuity with reference to Regulation 351-A has been provided for and therefore, the other provisions of the Civil Service Regulation will not apply.

10. In our opinion, the contention has only been raised to be rejected. There is a specific mention of Regulation 351-A under Rule 9 of the Rules 1961, but when such Rules as read Rule 2 sub-Rule 2, it would logically lead to a conclusion of other provisions of the Civil Service Regulation which are not in conflict with the Rules 1961 would also apply.

11. The Division of this Court in the case State of Uttar Pradesh and others (supra) has dealt with the provisions of Civil Service Regulation specifically Regulation 351, 351-A and 351-AA read with Rule 919-A of Civil Service Regulation and has specifically held that gratuity can be withheld if person is facing criminal charges. The Division Bench judgment was binding upon the learned Single Judge.

12. Learned counsel for the appell