ORDER : D.N. Patel, J. 1. This Letters Patent Appeal has been preferred by respondent no.5 of the Writ Petition being C.W.J.C. No. 1293 of 2001, which was allowed by the learned Single Judge vide judgment and order dated 15th March, 2013, whereby, the learned Single Judge has ordered to pay 10% Pension which was withhold by the Government; the learned Single Judge has allowed payment of Gratuity which was also withhold by the Government; and the learned Single Judge has allowed payment of encashment of Earned-Leaves which was also withhold by the Government mainly for the reason that this respondent no.1 (original petitioner) was convicted for 6 years rigorous imprisonment for the offence under “Animal Husbandry Scam” which is also popularly known as “Fodder Scam” and fine of Rs.1,80,000/-was imposed by the competent trial court. Criminal Appeal was preferred by this respondent no.1 (original petitioner) in which order of suspension of sentence has been passed. The amount of fine has not been paid by this respondent no.1 (original petitioner). Reasons: 2. Having heard learned counsels for both the sides and looking to the facts and circumstances of the case, it appears that respondent no.1 is an original petitioner. The Government has withheld 10% Pension, Gratuity and encashment of Earned Leave of respondent no.1, who has retired on 31st January, 1996, mainly for the reason that the Central Bureau of Investigation (CBI) has started inquiry against respondent no.1. 3. Ultimately, the Central Bureau of Investigation filed a charge sheet and respondent no.1 (original petitioner) was convicted in a case which is popularly known as “Animal Husbandry Scam” or “Fodder Scam” for six years rigorous imprisonment and fine of Rs.1,80,000/-was also imposed. For this reason, 10% Pension, Gratuity and encashment of Earned Leave have been withhold by the Government. 4. Respondent no.1 had preferred a Writ Petition being C.W.J.C. No. 1293 of 2001 which was allowed by the learned Single Judge vide judgment and order dated 15th March, 2013 on the ground of violation of Section 43(b) of the Bihar Pension Rules etc. 5. 4. Respondent no.1 had preferred a Writ Petition being C.W.J.C. No. 1293 of 2001 which was allowed by the learned Single Judge vide judgment and order dated 15th March, 2013 on the ground of violation of Section 43(b) of the Bihar Pension Rules etc. 5. It appears that the learned Single Judge has lost sight of the fact that when respondent no.1 (original petitioner) is already convicted in a case initiated by the Central Bureau of Investigation for six years' rigorous imprisonment with a fine of Rs.1,80,000/-and the Government has withheld the amount, in such eventuality, prerogative power of the writ jurisdiction ought not to have been exercised. It is one thing to have a power of judicial review in writ jurisdiction and it is altogether another thing, to exercise such powers. Prerogative power of writ jurisdiction ought not to have been exercised in a case where the petitioner is already convicted. Huge amount of fine is imposed by the competent trial court, which is not yet paid by respondent no.1-accused (original petitioner). Writ jurisdiction in such eventuality is not a proper remedy at all. Writ jurisdiction, in a case in which, the petitioner is already convicted and fine imposed which is not yet paid and the amount of 10% Pension, Gratuity and encashment of Earned Leave is withheld by the Government, ought not to have been exercised, at all. Issuance of a Writ is discretion of the Court. 6. Let respondent no.1 (original petitioner) waits till his conviction is quashed by the competent appellate forum and thereafter he can initiate proceeding for recovery of the amount before any competent court or authority. Even a civil suit can be filed to get the money from the Government. 7. It has been held by the Hon'ble Supreme Court in the case of Union of India v. Ramesh Kumar, reported in (1997) 7 SCC 514 , in paragraph 6, which reads as under: “6. A bare reading of Rule 19 shows that the disciplinary authority is empowered to take action against a government servant on the ground of misconduct which has led to his conviction on a criminal charge. A bare reading of Rule 19 shows that the disciplinary authority is empowered to take action against a government servant on the ground of misconduct which has led to his conviction on a criminal charge. The rules, however, do not provide that on suspension of execution of sentence by the appellate court the order of dismissal based on conviction stands obliterated and the dismissed government servant has to be treated under suspension till disposal of appeal by the appellate court. The rules also do not provide the disciplinary authority to await disposal of the appeal by the appellate court filed by a government servant for taking action against him on the ground of misconduct which has led to his conviction by a competent court of law. Having regard to the provisions of the rules, the order dismissing the respondent from service on the ground of misconduct leading to his conviction by a competent court of law has not lost its sting merely because a criminal appeal was filed by the respondent against his conviction and the appellate court has suspended the execution of sentence and enlarged the respondent on bail. This matter may be examined from another angle. Under Section 389 of the Code of Criminal Procedure, the appellate court has power to suspend the execution of sentence and to release an accused on bail. When the appellate court suspends the execution of sentence, and grants bail to an accused the effect of the order is that the sentence based on conviction is for the time being postponed, or kept in abeyance during the pendency of the appeal. In other words, by suspension of execution of sentence under Section 389 CrPC an accused avoids undergoing sentence pending criminal appeal. However, the conviction continues and is not obliterated and if the conviction is not obliterated, any action taken against a government servant on a misconduct which led to his conviction by the court of law does not lose its efficacy merely because the appellate court has suspended the execution of sentence. Such being the position of law, the Administrative Tribunal fell into error in holding that by suspension of execution of sentence by the appellate court, the order of dismissal passed against the respondent was liable to be quashed and the respondent is to be treated under suspension till the disposal of criminal appeal by the High Court.” (emphasis supplied) 8. Such being the position of law, the Administrative Tribunal fell into error in holding that by suspension of execution of sentence by the appellate court, the order of dismissal passed against the respondent was liable to be quashed and the respondent is to be treated under suspension till the disposal of criminal appeal by the High Court.” (emphasis supplied) 8. It has been held by the Hon'ble Supreme Court in the case of Mahendra Prasad Singh v. State of Bihar, reported in (2011) 13 SCC 118 , in paragraphs 13, 14 and 18, which read as under: “13. In our opinion, the authorities and the High Court were right in coming to the conclusion that as the appellant was removed from service by way of dismissal on account of his misconduct, the appellant was not entitled to get any pension as per Rule 46 of the Rules. 14. It is pertinent to note that according to the provisions of Rule 107 of the Rules, there can be four types of pensions as narrated in the said Rule —(i) Compensation pensions, (ii) Invalid pensions, (iii) Superannuation pensions and (iv) Retiring pensions. The appellant could not make out any case for entitlement to any of the pensions referred to hereinabove. The learned counsel appearing for the appellant also could not point out any provision enabling the appellant to get pension. 18. In our opinion, the provisions of Rule 46 of the Rules would not help the appellant especially because his service was terminated due to his misconduct. It is an admitted fact that due to his misconduct, his service was terminated or he was removed from service and, therefore, also, in our opinion, the appellant would not be entitled to any pension.” (emphasis supplied) 9. Criminal appeal preferred by respondent no.1 is pending in this Court, as submitted by the counsel for respondent no.1. There is no stay order against the conviction. The order of suspension of sentence, has been passed under Section 389 of the Code of Criminal Procedure, as submitted by learned counsel for respondent no.1. Neither the fine imposed is yet paid by respondent no.1 nor he has undergone the additional sentence awarded to him in lieu of fine. 10. In this eventuality, writ jurisdiction is not a proper remedy at all. Neither the fine imposed is yet paid by respondent no.1 nor he has undergone the additional sentence awarded to him in lieu of fine. 10. In this eventuality, writ jurisdiction is not a proper remedy at all. Hence, this Letters Patent Appeal is allowed and we, hereby, quash and set aside the judgment and order delivered by the learned Single Judge in C.W.J.C. No. 1293 of 2001, dated 15th March, 2013. 11. Liberty is reserved with respondent no.1 (original petitioner) to file a civil suit in the competent civil court, as per Section 15 of the Code of Civil Procedure or he can wait till the criminal proceedings are over, if at all he wants to prefer any application after getting any order of acquittal from the criminal charges. 12. The amount which is already paid to the original petitioner by the State is not disturbed nor the payment of Pension @ 90% is, hereby, disturbed. The same shall be continued by the State. As on date, what is not paid by the appellant, is not required to be paid during the pendency of criminal appeal preferred by respondent no.1 (original petitioner). 13. This Letters Patent Appeal is, therefore, allowed and disposed of.