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Judgment
Date : 27-08-2026 Heard learned counsel appearing on behalf of the petitioner and learned counsel for the respondents.
The petitioner in paragraph no. 1 of the present writ petition has sought, inter alia, the following relief(s), which is reproduced hereinafter:-
“That this is an application for issuance of a writ in the nature of mandamus or any other appropriate writ/rule/direction commanding the respondent authorities to pay to the petitioner his pension, gratuity, final settlement of GPF and other admissible amount payable to the petitioner after his superannuation from service who has superannuated on 28.02.2025 from the post of MES 468199, Elect. (HS-II) Garrison Engineer, Danapur Cant. Bihar after discharging his duties for not less than 42 years but his entire claim has been kept pending by the respondent as would be evident from letter no.P/US Singh/Elect. (HS-II)20/E1 (PEN) dated 29.08.2025 (Annexure- P/1) but he has not been paid even a single rupee after his superannuation from service.
And/or For any other relief/reliefs for which the petitioner is entitled for the facts and circumstances of the present case.”
Learned counsel appearing on behalf of the petitioner submitted that a counter affidavit has been filed on behalf of the respondents and the respondents have not denied that the petitioner is not entitled for the retiral benefits under different heads, as prayed for in the present writ petition, including the pension. Learned counsel further submitted that as per the information, final pension of the petitioner has been sanctioned on 13.08.2026 and in that circumstances, question of regularization of service during the period of his leave is only a formality and order is required to be passed by the competent authority.
Per contra, Mr. Sujit Kumar Sinha, learned counsel appearing on behalf of the Union of India, informs that the petitioner had remained absent from duty for a certain period, in respect whereof, a meeting was convened on 12.02.2026. Thereafter, a proposal for sanction of provisional pension in favour of the petitioner was initiated on 23.02.2026 and, as per the latest instructions, the petitioner’s final pension/ commutation of pension and gratuity were sanctioned on 13.08.2026. He further informs that no disciplinary action was taken against the petitioner and, as such, it was found by the authority to sanction full pension to the petitioner, without withholding any amount from any of the pensionary benefits.
Learned counsel further submits that a Committee has also been constituted to consider to regularize the period during which the petitioner was absent from duty. Learned counsel submits that the petitioner may represent before the committee duly constituted, in case he wants to give more information.
Heard the parties.
It is admitted that the petitioner remained absent from duty for a certain period. However, the respondents have since considered the petitioner’s case and found him entitled to full pension, which was sanctioned on 13.08.2026, along with other admissible pensionary benefits. In view thereof, the payment of the pensionary benefits to which the petitioner has been found entitled should not to be delayed any further, considering the fact that no disciplinary action was initiated against the petitioner during his service on account of the aforesaid period of absence.
The remaining grievance of the petitioner is with regard to the withholding of the amount of leave encashment payable to him upon his retirement. In this regard, I find it apt to quote Rule 39(3) of the CCS (Leave) Rules which is reproduced hereinafter:
“39.(3) The authority competent to grant leave may withhold whole or part of cash equivalent of earned leave in the case of a Government servant who retires from service on attaining the age of retirement while under suspension or while disciplinary or criminal proceedings are pending against him, if in the view of such authority there is a possibility of some money becoming recoverable from him on conclusion of the proceedings against him. On conclusion of the proceedings, he will become eligible to the amount so withheld after adjustment of Government dues, if any.”
Rule 39(3) of the CCS (Leave) Rules specifically contemplates withholding of the whole or part of the cash equivalent of earned leave only in a case, where a Government servant retires while under suspension or while disciplinary or criminal proceedings are pending against him, and where, in the opinion of the competent authority, there is a possibility of recovery of some amount from him upon conclusion of such proceedings. Thus, the power to withhold leave encashment is not unbridled and can be exercised only within the parameters prescribed under Rule 39(3) of the CCS (Leave) Rules.
In the present case, it is an admitted position that the petitioner was neither under suspension nor was he facing any disciplinary or criminal proceeding at the time of his retirement. Therefore, the pre-conditions prescribed under Rule 39(3) are not attracted. In the absence of any such proceeding or any statutory authority for withholding the amount, the action of the respondents in arbitrarily withholding the leave encashment payable to the petitioner is unsustainable in law. Leave encashment, being a retiral benefit, earned by an employee on account of the service rendered by him, also plays the character of a property protected under Article 300A of the Constitution of India. The respondents, therefore, cannot withhold the leave encashment payable to the petitioner in the absence of any statutory authority.
The Hon’ble Apex Court in case of State of Jharkhand and Ors. Vs. Jitendra Kumar Srivastava and Anr., reported in AIR 2013 SC 3383, has categorically held that pensionary benefits are not the bounties. An employee earns these benefits by dint of his long, continuous, faithful and unblemished service. Relying on the judgment of the Apex Court in cases of D.S. Nakara and Ors. Vs. Union of India, reported in (1983) 1 SCC 305 and Deoki Nandan Prasad Vs. State of Bihar and Ors., reported in (1971) 2 SCC 330, the Apex Court further clarified that pension and pensionary benefits are like private property and the right to property is a constitutional right under Article 300A of the Constitution. The relevant paragraph of the judgment of Jitendra Kumar Srivastava (supra) is inter alia reproduced hereinafter:
“16.The fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognised as a right in “property”. Article 300-A of the Constitution of India reads as under:
“300-A.Persons not to be deprived of property save by
authority of law.—No person shall be deprived of his property save by authority of law.”
Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the constitutional mandate enshrined in Article 300-A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.
17.It hardly needs to be emphasised that the executive instructions are not having statutory character and, therefore, cannot be termed as “law” within the meaning of the aforesaid Article 300-A. On the basis of such a circular, which is not having force of law, the appellant cannot withhold even a part of pension or gratuity. As we noticed above, so far as statutory Rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these Rules, the position would have been different.”
In view of the facts and circumstances of the present case, and having regard to the fact that the respondents have already sanctioned the petitioner’s final pension, commutation of pension and gratuity on 13.08.2026, and there being no disciplinary or criminal proceeding pending against him, this Court directs respondent no. 3 to take an appropriate decision with regard to regularization of the period of absence of the petitioner in accordance with law and thereafter ensure that all retiral dues admissible to the petitioner, including pension, gratuity, commutation of pension, leave encashment, final settlement of GPF and all other consequential pensionary benefits, are released and paid to him within a period of three weeks from the date of receipt/communication of a copy of this order.
Accordingly, the writ petition stands disposed of.