JUDGMENT : The petitioner had attained the age of superannuation on 30.09.1994 while holding post of Executive Engineer. Before his retirement, on 27.09.1994 he was served with a charge sheet under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (in short, 'the CCA Rules of 1958') wherein certain allegations were levelled against him relating to not recovering certain amount from the contractor in the period from January, 1985 to May, 1986. Enquiry was conducted jointly along with co-delinquents and the said enquiry culminated into an order of punishment passed against the petitioner of stopping 10% of his pension for five years vide Order dated 09.11.1998. The order was passed after seeking sanction from the Governor. It was further directed that an amount of Rs.25688/- be recovered from the amount of his pension gratuity. The Junior Engineer, who was co-delinquent, was, however exonerated of the charges. 2. Learned counsel for the petitioner has, while assailing the departmental enquiry proceedings as also assailing the action being highly belated, confined his arguments to the non compliance of the provisions of Rule 170 of the Rajasthan Service Rules of 1951 as they existed at the time of retirement and were applicable to the cause of the petitioner. It is a submission that under Rule 170, while departmental enquiry initiated before retirement, could be continued but the punishment could be awarded by the Governor only after providing an opportunity of hearing to delinquent for proposed order of reduction of pension. He has invited attention of this Court to the clarification issued by the State Government, which has been included as part of the Rules under Rule 170, which reads as under:- Rule 170 Clarification :- "According to proviso (a) of Rule 170 of the Rajasthan Service Rules, departmental proceedings if instituted while the officer was in service, whether before his retirement or during his re-employment, shall, after the final retirement of the officer, be deemed to be proceedings under the said rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the officer had continued in service. A question has been raised whether in respect of an officer, whose case falls within the purview of the aforesaid proviso and proceedings against whom were instituted by an authority subordinate to the Governor, order for withdrawals withholding of pension can be passed by the subordinate authority on the conclusion of the proceedings, or the authority should refer the case to the Governor for final orders. The matter has been considered and it is clarified that the function of the Disciplinary Authority in respect of departmental proceedings referred to in Rule 170 is only to reach a finding on the charges and to submit a report recording its findings to the Government. It is then for the Government to consider the findings and take a final decision under rule 170 of Rajasthan Service Rules. In case Government decide to take action under Rule 170 of Rajasthan Service Rules in the light of the findings of the Disciplinary Authority, the Government will serve the person concerned with a show-cause notice specifying the action proposed to be taken under Rule 170 of Rajasthan Service Rules and the person concerned will be required to submit his reply to the show-cause notice within such time as may be specified by the Government. The Government will consider the reply and consult the Rajasthan Public Service Commission. If as a result of such consideration in consultation with the commission, it is decided to pass an order under Rule 170 of Rajasthan Service Rules, necessary orders will be issued in the name of the Governor." 3. It is submitted that receiving pension is fundamental right of an employee and the same cannot be taken away without following due procedure of law. The punishment awarded to the petitioner is not under the Rules of 1958 and it is only the enquiry which is alleged to be continued against the retired Government servant under Rule 170, however, decision of the Governor is independent of the Rules of 1958 and such a decision could be taken only after giving an opportunity of hearing to the petitioner. Learned counsel has relied on the judgment of this Court in case of Dr. J.N. Purohit v. State of Rajasthan & Another 1986 (2) WLN 638 . 4. Per contra, learned counsel for the respondents Mr. Learned counsel has relied on the judgment of this Court in case of Dr. J.N. Purohit v. State of Rajasthan & Another 1986 (2) WLN 638 . 4. Per contra, learned counsel for the respondents Mr. B.L. Avasthi submits that there is on basic error if the submission of the learned counsel for the petitioner is accepted because the order by which the pension has been withheld is on 09.11.1998. It is a submission that the Rajasthan Service Rule of 1951 relating to pension were replaced w.e.f. 01.10.1996 and the said Rules were held a repeal the Pension Rules of 1996 provides under Rule 7 procedure to withhold pension and there is no clarification appended to Rule 7 and thus the clarification, which has been relied upon by the learned counsel for the petitioner, would not apply after coming into force the Rules of 1996 and no opportunity is required to be given by the Governor before withholding or reading pension under Rule 7 of the Rules 1996. He also relied on Provisions contained under Rule 168(2E) and submitted that in view of the coming into force of the new Rules, the old Rules have no application. 5. On consideration of the submissions of both the counsel of this Court finds that Rule 170 of the Rules of 1951 was applicable to the petitioner at the time when he retired on 30.09.1994. 6. In view of a charge sheet having been issued to the petitioner prior to 30.09.1994 under Rule 170(a) such departmental proceedings to continue. 5. On consideration of the submissions of both the counsel of this Court finds that Rule 170 of the Rules of 1951 was applicable to the petitioner at the time when he retired on 30.09.1994. 6. In view of a charge sheet having been issued to the petitioner prior to 30.09.1994 under Rule 170(a) such departmental proceedings to continue. For ready reference, Rule 170 is being quoted:- "170:- Recoveries of losses from the pension - The Governor further reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service including service rendered upon reemployment after retirement:- (a) Provided that such departmental proceeding, if instituted while the officer was in service, whether before his retirement or during his re-employment, shall after the final retirement of the officer, be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the officer had continued in service; (b) such department proceeding, if not instituted while the office was in service, whether before his retirement or during his re-employment,- (i) shall not be instituted save with the sanction of the Governor; (ii) shall not be in respect of any event which took place more than 4 years before such institution; and (iii) shall be conducted by such authority and in such place as the Governor may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the officer during his service; (c) no such judicial proceeding, if not instituted while the officer was in service, whether before his retirement or during his re-employment, shall be instituted in respect of a cause of action which arose or an event which took place more that 4 years before such institution; and (d) The Rajasthan Public Service Commission shall be consulted before final orders are passed. Rule 170-A (1) Where any departmental or Judicial proceeding is instituted under rule 170 or where a departmental proceeding is continued under clause (a) of the proviso thereto against an officer who has retired on attaining the age of compulsory retirement or otherwise, he shall be paid during the period commencing from the date of his retirement to the date on which, upon conclusion of such proceeding, final orders are passed, a provisional pension not exceeding, final orders are passed, a provisional pension not exceeding the maximum pension which would have been admissible on the basis of his qualifying service up to the date of retirement, or if he was under suspension on the date of retirement upon the date immediately preceding the date on which he was placed under suspension; but on gratuity or death-cum-retirement gratuity shall be paid to him until the conclusion of such proceeding and the issue of final orders thereon. (2) Payment of Provisional pension made under sub-rule (1) shall be adjusted against the final retirement benefits sanctioned to such officer upon conclusion of the aforesaid proceeding but no recovery shall be made where the pension finally sanctioned is less that the provisional pension or the pension is reduced or withheld either permanently or for a specified period." 7. In view of above, it is apparent that after 30.09.1994, the petitioner was facing departmental enquiry and he was receiving provisional pension as provided under Rule 170(A). Clarification to Rule 170 would thus apply if action is taken under Rule 170(1) of withholding/withdrawing fully or partly pension of an employee who has retired. The order which has been passed in 1998 with regard to Rule 171. 8. Argument of Mr. B.L. Avasti, cannot be accepted in view of the provisions contained under Rule 1 and 2 of Pension Rules of 1996. From the perusal of Rule 1 and 2 of Pension Rues of 1996, it is seen that the said Rules of 1996 would apply only to a Government servant, who was holding post on 01.10.1996, retires thereafter quoted. Rule 1 and 2 of the Rules of 1996 read thus:- "Rule 1 Short Title and Commencement.-(1) These rules may be called the Rajasthan Civil Services (Pension) Rules, 1996. (2) They shall come into force with effect from 01.10.1996. Rule 1 and 2 of the Rules of 1996 read thus:- "Rule 1 Short Title and Commencement.-(1) These rules may be called the Rajasthan Civil Services (Pension) Rules, 1996. (2) They shall come into force with effect from 01.10.1996. Rule 2 Application.-Save as otherwise provided in these rules, these rules shall apply to Government servants appointed to Civil services and posts in connection with the affairs of the Rajasthan State which are borne on pensionable establishments, but shall not apply to- (a) Persons in casual, daily rated and work-charged employment; (b) Persons paid from contingencies; (c) Persons entitled to the benefit of a Contributory Provident Fund; (d) members of the All India Services; (e) Persons employed on contract except when the contract provides otherwise; and (f) Persons whose terms and conditions of service are regulated by or under the provisions of the Constitution or any other law for the time being in force. [(g) Government Servants appointed to the civil services of the State on or after the 1st day of January, 2004.]" 9. Government servant definition is also provided under the CCA Rules of 1958 to mean "a person who is member of a service or holds a civil post under the Government of Rajasthan and includes any such person on foreign service, or whose services are temporarily placed at the disposal of a local or other authority and also any person in the service of a local or other authority whose services are temporarily placed at the disposal of Government of Rajasthan or a person in service on a contract or a person who has retired from Government service elsewhere and is re-employed under the Government of Rajasthan, but does not include a person in the Civil Service of the Indian Union or a State Government serving on deputation in Rajasthan who will continue to be governed by the Rules applicable to such person". 10. It would apply to all persons, who may be employed in one capacity or another with the Government. It even applies to retired persons who may be re-employed, however it would not apply to a person who has retired. Otherwise the very purpose of Rule 7 of the Rules of 1996 or 170 as it earlier existed would stand otiose. Considering the aforesaid aspects and also taking into consideration the law which has been laid down by this Court in Dr. Otherwise the very purpose of Rule 7 of the Rules of 1996 or 170 as it earlier existed would stand otiose. Considering the aforesaid aspects and also taking into consideration the law which has been laid down by this Court in Dr. J.N. Purohit v. State of Rajasthan & Another (Supra) this Court is unable to uphold the order of punishment passed against the petitioner date. 09.11.1998 and the same is, therefore quashed and set aside having been passed without following the procedure laid down under Rule 170. 11. Having said that, the question would arise whether the matter can be remanded back to the State Government for that purpose now. 12. Considering that the petitioner has already expired, no further action can be taken in this regard and the matter be given quietus and LRs given the consequential benefits upon the quashing of the aforesaid order. 13. Accordingly, the writ petition is allowed. The order is quashed and set aside. The LRs of the petitioner are directed to be paid all consequential benefits, which has been clarified, may be served held. The compliance of the order is to be done within a period of 3 months from the date of submission of certified copy of this order. Thus would be entitled to interest @ 9% p.a., on the arrears as also on the amount withheld and deducted from his gratuity pension.