ORDER:
This writ petition is filed by the petitioner under Article 226 of the Constitution of India for the following reliefs:
"...to issue a Writ Order Or Direction more particularly one in the nature of Writ of Mandamus, declare the action of the respondents in not releasing petitioner's Full Pension and other retirement benefits w.e.f. the date of his retirement i.e. from 30-9-2020, on mere pendency of Criminal Appeal No.851 of 2013, against his acquittal orders in ACB Trap Case (Criminal Case) No.4 of 2011, contrary to the provisions of A.P. Revised Pension Rules, and wholly arbitrary, illegal, without jurisdiction and in violation of Article 14, 21 and 300A of the Constitution of India, consequently direct the respondents herein to release Full Pension, Gratuity, Encashment of Earned Leave and Commutation of Pension along with 12% interest from 30-9-2020 to till the date of payment, in terms of the settled law reported in 2018(3)ALT 91 and W.P.No.6474 of 2021 and W.P.No.19785 of 2021 immediately, and to pass such other order or orders…" (in verbatim)
2. When the matter is taken up for hearing, Sri Ramalingeswara Rao Kocherla Kota, learned counsel for the petitioner, submits that the issue involved in this writ petition is squarely covered by the order dated 14.03.2022 passed by this Court in Writ Petition No.19785 of 2021 and requested to pass a similar order in this writ petition also. The operative portion of the said order is extracted hereunder:
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"Paragraph No.12: Accordingly, the writ petition is allowed. The respondents are directed to release all the retiral benefits to which the petitioner is entitled as expeditiously as possible preferably within a period of six (06) weeks from the date of receipt of copy of this order. The petitioner is entitled to interest @ 10% from the date of acquittal by the Criminal Court till date of payment…"
3. Learned Government Pleader for Services-I appearing for the 1strespondent submits that the 1strespondent filed counter affidavit and states as follows:
"Paragraph No.7: It is submitted that, Rule 52 of the A.P. Revised Pension Rules described the sanction of provisional pension where departmental or judicial proceedings are pending against retired Government servant. Relevant extract is as detailed below:
a. In respect of a Government servant referred to in Sub Rule (4) of Rule 9, the Audit Officer/ Head of Office shall pay the provisional pension not exceeding the maximum pension which would have been
admissible on the basis of qualifying service upto date of the Government servant, or if he was under suspension on the date of retirement upto date immediately preceding the date on which he was placed under suspension.
b. The provisional pension shall be paid by the Audit Officer/head of office during the period commencing from the date of retirement to the date on which, upon the conclusion of the departmental or judicial proceedings, final orders are passed by the competent authority.
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c. No gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders. It is submitted that in G.O.Rt.No.1097, Finance & Planning (FW.Pen.1) Dept, dated 22.06.2000, consolidated orders were issued for regulation of payment of pensioner benefits to Government servants retired from service pending disciplinary action. Relevant extract is as detailed below:
"In case of Government Employee against whom the departmental proceedings or criminal proceedings are pending at the time of retirement, all the terminal benefits need not be released. Proceedings pending means, there must be proceedings already initiated and pending within the meaning of Rule 9 of the Andhra Pradesh Revised Pension Rules, 1980. A Government Servant who attains the age of superannuation while under suspension should be allowed to retire on the due date of superannuation. But pensionary benefits cannot be settled until the conclusion of the enquiry or disposal of charges. In such cases, the payment of terminal benefits shall be regulated as follows:
B. Encashment of Earned Leave:
As per the orders issued in G.O. 11, Finance & Plg (FW.FR.I) Dept, dated 15.01.1997 "the authority competent to grant leave, in the above mentioned cases may withhold whole or part of cash equivalent of earned leave, if in the view of the competent authority there is a possibility of some money becoming recoverable from him on conclusion of the proceedings against him. On conclusion, the retired employee will become eligible to the amount so withheld after adjustment of the Government dues if any. As such Encashment of Earned Leave can be regulated accordingly."
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D. Provisional Pension:
As per Sub-rule (4) of rule 9 of the Andhra Pradesh Revised Pension Rules, 1980, the retired employees mentioned in the above cases shall be sanctioned provisional pension as provided in rule 52 of the said rules. According to rule 52 of the said rules, the Audit Officer / Head of Office shall pay the provisional Pension not exceeding the eligible pension. The provisional pension shall be paid from the date of retirement to the date on which, final orders are passed by the competent authority on conclusion of the departmental or Judicial proceedings pending against the retired employee. The Provisional pension shall not be less than 75% of the normal pension entitlement.
E. Commuted Value of Pension:
No Commutation of pension shall be allowed in the above mentioned cases since sub rule 3 of the rule 3 of the Andhra Pradesh Commutation rules, do not permit a Govt. Servant against whom judicial of departmental proceedings has been instituted or pending, to commute any part of his pension during the pendency of such proceedings. Further, in the case of those to whom only provisional pension is granted, if after conclusion, entire pension is withheld, the question of commutation does not arise. In the case of others to whom pension was allowed either in full or in part, the period of one year for commutation without medical examination has to be reckoned from the date of issue of orders on conclusion of the proceedings.
It is submitted that, as per the rule position explained above, as the Criminal Appeal No. 851/2013 filed before the High Court against acquittal Judgment of the Special Judge for SPE & ACB Cases, Nellore in C.C.No.04/2011, Dt.01.04.2013, against Sri Shaik Kalesha, Fisheries Development Officer,
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Padugupadu (now retired) is pending for adjudication, provisional pension to an extent of 75% of the normal eligible pension under Rule 52 of the A.P. Revised Pension Rules, 1980, was sanctioned to Sri Shaik Kalesha, Fisheries Development Officer, Padugupadu (now retired), by the Government in G.O.Rt.No.14, AHDD & F(Dy.&Vig.), dated 17.01.2022. Paragraph No.8: It is submitted that as the Criminal Appeal No. 851/2013 filed before the High Court against acquittal Judgment of the Special Judge for SPE & ACB Cases, Nellore in C.C.No.04/2011, Dt.01.04.2013, against Sri Shaik Kalesha, Fisheries Development Officer, Padugupadu (now retired) is pending, full pension and other retirement benefits have not been sanctioned instead provisional pension to an extent of 75% of the normal eligible pension was sanctioned to Sri Shaik Kalesha, Fisheries Development Officer, Padugupadu (now retired) in G.O.Rt.No.14, AHDD & F(Dy.&Vig.), dated 17.01.2022."
4. In view of the same, for the reasons alike in the aforesaid order, this Writ Petition is also allowed in terms of the order dated 14.03.2022 passed by this Court in W.P.No.19785 of 2021. Accordingly, the respondents are directed to release all
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the retiral benefits to which the petitioner is entitled as expeditiously as possible preferably within a period of six (06) weeks from the date of receipt of a copy of this order. The petitioner is entitled to interest @ 10% w.e.f. the date of his retirement i.e., from 30.09.2020 to till the date of payment. There shall be no order as to costs.
5. Registry is directed to attach a copy of the order dated 14.03.2022 passed by this Court in W.P.No.19785 of 2021, to this order.
As a sequel thereto, interlocutory applications, if any pending, shall stand closed.
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NIMMAGADDA VENKATESWARULU, J
1stMay, 2023 cbn
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HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA
C-233
Writ Petition No.4845 of 2023 (allowed)
1stMay, 2023
cbn