ORAL ORDER

1. By way of this petition, under Article 226 of the Constitution of India, the petitioner has prayed for a direction that the respondent authorities be directed to pay provisional gratuity to the petitioner and provisional pension till the final outcome of Criminal Appeal No. 16 of

2018 pending before this court.

2. The facts giving rise to the present petition, in brief, are as under:

2.1 The petitioner was working as an English Section Writer. He was thereafter promoted as Junior Clerk in the year 1987. The petitioner retired on superannuation on 30th November 2017. During his service tenure, a complaint was lodged under the provisions of the Prevention Of Corruption Act, 1988. The petitioner was tried by the Special Court in (ACB) Case No. 19 of 2007. By the judgement of the sessions court dated 28.12.2017, the petitioner is convicted for 3 years rigorous imprisonment and fine of Rs.2500/- on failure of which imprisonment of three months is imposed. Being aggrieved and dissatisfied with the above judgement, the petitioner has preferred an appeal before the High Court being Criminal Appeal No. 16 of 2018. The court by its order dated 10.01.2018 has admitted the appeal and suspended the sentence of the trial court.

2.2 Departmental proceedings were also initiated against the petitioner and which ultimately resulted in a punishment order of withholding five increments with future effect wide order dated 25.01.2018. A show cause notice was issued by the Principal District Judge calling upon the petitioner as to why the penalty imposed upon the petitioner should not be enhanced. Review proceedings have also been dismissed by order dated 11.4.2022.

3. Ms. Harshal Pandya, learned counsel for the petitioner would argue that reading the order of penalty passed by the disciplinary authority would indicate that they did not think it fit to impose penalty of dismissal from service looking to the past record of the petitioner. In other words, once the disciplinary authority had come to the conclusion and the conviction was after superannuation of the petitioner and since there was no dismissal from service, there was no reason why at least pending the criminal appeal, the petitioner be not given the benefit of provisional pension as well as gratuity.

3.1 In support of her submission, Ms. Harshal Pandya would rely on Rule 145 of the Gujarat Civil Services (Pension) Rules, 2002 (for short ‘the Rules’). She would submit that a government servant against whom the prosecution is not concluded is entitled to the benefit of provisional pension and gratuity. She would therefore submit that since the criminal appeal is pending before the High Court, the prosecution is not concluded and therefore even as the sentence is suspended the petitioner is entitled to the benefit of provisional pension and gratuity. She would therefore submit that therefore the petition deserves to be allowed. It is her submission that it is well settled that an appeal is continuous of trial and therefore as per the provision of Rule 145 of the Rules, the petitioner is entitled to the benefit of provisional pension and gratuity.

4. Mr. Shalin Mehta, learned Senior Advocate with Mr. Hemang Shah, learned advocate has appeared for the respondents and also for the the High Court on its administrative side. Mr. Mehta would submit that reading of Rule 145 would itself make it clear that the argument of the learned counsel for the petitioner does not deserve to be considered. Reading Rule 145 of the Rules, Mr. Mehta would submit that the term ‘prosecution being not concluded’ is elaborated and explained to mean that the judgement of the trial court is not delivered. The term ‘prosecution being not concluded’ cannot be extended to mean deemed extension of the prosecution and the department has to wait till the outcome of the appellate proceedings. He would therefore submit that the language of the rule is very clear that once the judgement of the trial court is delivered re