JUDGMENT :

SUNEET KUMAR, J.

1. We have heard Sri Ram Kishore Gupta on behalf of the appellants and Sri Shashank Shekhar Singh, Additional Chief Standing Counsel for the respondents.

2. The written submission of Sri B.N. Singh Rathore has also been considered.

3. In the batch of writ petitions the controversy involved is with regard to entitlement of the government servant to receive Death-cum-Retirement gratuity on superannuation or otherwise pending judicial proceedings.

4. Petitioners are government employees (Lekhpal/Police Officials), who have retired on attaining the age of superannuation, and by the impugned orders, their full pension and gratuity has been kept in abeyance pending judicial proceedings against them. The petitioners have sought quashing of the impugned orders declining full pension and gratuity during pendency of the judicial proceedings and further have sought an additional direction to the respondent-authority to release/pay full pension and gratuity on the plea that pension and gratuity cannot be withheld during pendency of the judicial proceedings or that the allegations/charge do not pertain to grave misconduct/serious crime or having caused pecuniary loss.

5. The learned Single Judge upon noticing conflicting Division Bench decisions rendered in State of U.P., and others Vs. Jai Prakash, 2014 (1) ADJ 207 (Jai Prakash case) on the one hand and in particular the decision rendered by the Division Bench in State of U.P. and others Vs. Faini Singh, Special Appeal Defective No. 416 of 2014, decided on 25.04.2014 (Faini Singh case) and others on the other hand, referred the matter to the larger Bench.

6. The learned Single Judge while referring the matter has not formulated or referred any particular question of law to be answered by the larger Bench. The Full Bench of this Court in Tuples Educational Society and another Vs. State of U.P., and another, (2008) 2 UPLBEC 1611 opined that the referring Court has ample power under Chapter V Rule 6 High Court Rules, 1952 to refer a case to a larger Bench either framing questions of law or the entire case.

7. We have gone through the pleadings of the writ petitions and the reference order with the assistance of the learned counsel parties, in our opinion the following points arise for consideration;

(i) whether government servant upon retirement on attaining the age of superannuation or otherwise is entitled to full pension/death-cum-retirement-gratuity on and during pendency of judicial proceedings; (ii) whether the government servant/pensioner is entitled to full pension/death-cum-retirement gratuity before conclusion of the disciplinary proceedings/or judicial proceedings and final orders being passed thereon by the competent authority; (iii) whether the view expressed in Jai Prakash lays down the correct law or that expressed in Faini Singh the other decisions noted in the referring order.

Concept of Pension:

8. It is accepted position of law that pension and gratuity are not bounties. An employee earns these benefits by dint of his long, continuous, faithful and unblemished service. In case of a civil servant whose service conditions are governed by statutory rules; pension, a deferred salary, is a right and the payment of pension/gratuity does not dependent upon the discretion of the Government. Government servant coming within the Rules is entitled to claim pension. The right to receive pension flows not by any order to that effect but the right to receive pension flows by virtue of the Rules governing pension and gratuity.

9. The Supreme Court in D.S. Nakara vs. Union of India, 1983 (1) SCC 305 placing reliance upon the Constitution Bench decision rendered in Deokinandan Prasad vs. State of Bihar, 1971 (2) SCC 330, and State of Punjab vs. Iqbal Singh, 1976 (2) SCC 1, observed as follows:

“The antiquated notion of pension being a bounty a gratituous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pensio