By the Court.— This Special Appeal filed by State of UP is directed against the judgment of learned Single Judge dated 11.12.2013 by which he has allowed the writ petition and quashed the order dated 26.11.2013 withholding the retiral benefits payable to the petitioner-respondent except provisional pension, and provident fund on the ground that the State Government does not have authority to withhold the retiral benefits on the pendency of the judicial proceedings against a government servant, who has superannuated, unless there is any allegation of loss to the government and there is any recovery to be made from the petitioner.

2. The Special Appeal is reported to be delayed by 102 days. We have examined the grounds for condonation of delay, which has not been seriously opposed. The grounds relate to delay in getting sanction from the State Government in filing the appeal. The delay in our opinion has been sufficiently explained and is accordingly condoned. The Special Appeal will be given regular number.

3. We have heard Shri A.K. Roy, learned Standing Counsel appearing for the State of UP. Shri A.N. Rai appears for the petitioner-respondent.

4. Learned Single Judge has relied upon a judgment of this Court in Writ Petition No.25554 of 2010 (Lalta Prasad Yadav v. State of UP and others) decided on 15.5.2013; Writ Petition No.26972 of 2013 (Santosh Kumar Singh v. State of U.P. and others) decided on 14.5.2013; Writ Petition No.10099 of 2013 (HC 11AP Mishir Lal v. State of UP and others) decided on 26.2.2013 and Writ Petition No.17141 of 2012 (HC 122 AP Deo Narain Singh v. State of UP and others) decided on 20.7.2012, in which it was held that the State Government does not have powers to withhold the retiral benefits of a superannuated government servant except on well recognised exceptions namely where there is allegation of loss to the government and there is any recovery to be made from the petitioner.

5. Learned Standing Counsel has placed reliance on a Division Bench judgment of this Court in State of UP and others v. Jai Prakash, Special Appeal Defective No.1278 of 2013 decided on 17.12.2013. The Division Bench relied on Regulation 351-A of the Civil Services Regulation, which empowers the State Government to recover from the pension the amount of loss found in judicial or departmental proceedings, to have been sustained by the Government by the negligence or fraud during his service. In the said case the Division Bench further found that Regulations 351, 351-A and 351-AA of the Civil Services Regulations operate in different fields. Regulation 351-AA specifically provides that where a departmental or judicial proceeding or any enquiry by the Administrative Tribunal is pending on the date of retirement, a provisional pension under Regulation 919-A may be sanctioned. Regulation 919-A (3) contains a specific prohibition on the payment of Death-Cum-Retirement Gratuity to a government servant until the conclusion of departmental or judicial proceeding and the issue of final orders thereon.

6. The Division Bench in the aforesaid judgment referred to a recent judgment of Supreme Court in the State of Jharkhand and others v. Jitendra Kumar Srivastava and another (Civil Appeal No.6770 of 2013 decided on 14.8.2013) in which it was held that in the absence of any statutory powers the State Government does not have authority to withhold the retiral benefits. The Supreme Court held that right to receive pension has been held in D.S. Nakara and ors v. Union of India, (1983) 1 SCC 305 as a right and the payment of which does not depend upon the discretion of the Government but is governed by the rules. A government servant coming within those rules is entitled to claim pension. The grant of pension does not depend upon anyone’s discretion. It is only for the purpose of quantifying the amount having regard to the period of service and other allied matters that it may be necessary for the authorities to pass an order to that effe