JUDGMENT : Heard through V.C. 2. The instant writ application has been preferred by the petitioner praying for a direction upon the respondent-authorities to release post-retiral benefits i.e. the MACP/Due Increments/Gratuity/Earned Leave/Pension etc., pursuant to his retirement on 31.01.2015. 3. Mr. D. K. Dubey, learned counsel for the petitioner submits that he initially joined as Junior Engineer on 07.07.1979 and was promoted to the post of Assistant Engineer. In the year 2013 in connection with a departmental proceeding, the disciplinary authority vide its order dated 13.11.2013 awarded punishment of censure with a further direction that the decision with regard to salary of the petitioner for the period of suspension would be taken after the decision in the criminal case. The petitioner has challenged the said order passed by the disciplinary authority in W.P.(S) No. 686 of 2014. 4. Learned counsel further submits that the Deputy Secretary Rural Development Department informed the other authorities that no proceeding is pending against this petitioner and finally he retired on 31.01.2015. 5. Learned counsel further submits that the entire no dues certificate issued to the petitioner has been submitted by him; however, he has not been paid the retiral benefits etc. It is specific averment in the writ application that no departmental proceeding is pending against this petitioner. 6. Learned counsel for the respondent-State submits that as per Memo No. 194 dated 16.06.2008 of Finance Department, if there is any criminal case pending against the Government servant post his retirement then instead of full pension it is to be sanctioned provisionally. Further as per Memo No. 115 dated 29.03.2010, pension can be stopped or taken back only after conclusion of the departmental proceeding against him. Since a criminal case is still pending against this petitioner before the competent court, the pension and gratuity has been withheld. 7. In reply to the aforesaid contention of learned counsel for the petitioner, Mr. Dubey submits that unless there is any force of law, the pension and/or gratuity cannot be withheld only due to pendency of a case. He further submits that these things are earned by long continuous and unblemished service and as per the Hon’ble Apex Court as held in the case of State of Jharkhand and others Vs. Dubey submits that unless there is any force of law, the pension and/or gratuity cannot be withheld only due to pendency of a case. He further submits that these things are earned by long continuous and unblemished service and as per the Hon’ble Apex Court as held in the case of State of Jharkhand and others Vs. Jitendra kumar Srivastava and Another, as reported in (2013) 3 JLJR SC 537, pension and gratuity is in the nature of property and right to this property cannot be taken away without the due process of law. He contended that when it is an admitted fact that no departmental proceeding is pending then there is no ground for withholding the payment. He further submits that so far as the punishment which was awarded to this petitioner is concerned, the same is subject matter of W.P.(S) No. 686 of 2014 and that too is only of censure. As such, the respondent may be directed to release the pensionary benefits along with statutory interest. 8. Having heard learned counsel for the parties and after going through the averments made in the respective affidavits it clearly transpires from the letter dated 06.01.2015 (Annexure-2) that no departmental proceeding is pending against this petitioner. The Hon’ble Apex Court in the case of Jitendra Srivastava (supra) has held at para 7 and 13 as under; “7. It is an accepted position that gratuity and pension are not the bounties. An employee earns these benefits by dint of his long, continuous, faithful and unblemished service. Conceptually it is so lucidly described in D.S. Nakara and Ors. Vs. Union of India; (1983) 1 SCC 305 by Justice D.A. Desai, who spoke for the Bench, in his inimitable style, in the following words: “The approach of the respondents raises a vital and none too easy of answer, question as to why pension is paid. And why was it required to be liberalised? Is the employer, which expression will include even the State, bound to pay pension? Is there any obligation on the employer to provide for the erstwhile employee even after the contract of employment has come to an end and the employee has ceased to render service? What is a pension? What are the goals of pension? What public interest or purpose, if any, it seeks to serve? Is there any obligation on the employer to provide for the erstwhile employee even after the contract of employment has come to an end and the employee has ceased to render service? What is a pension? What are the goals of pension? What public interest or purpose, if any, it seeks to serve? If it does seek to serve some public purpose, is it thwarted by such artificial division of retirement pre and post a certain date? We need seek answer to these and incidental questions so as to render just justice between parties to this petition. The antiquated notion of pension being a bounty a gratituous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deoki Nandan Prasad v. State of Bihar and Ors. [1971] Su. S.C.R. 634 wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon any one’s discretion. It is only for the purpose of quantifying the amount having regard to service and other allied maters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab and Anr. V. Iqbal Singh (1976) II LLJ 377 SC”. 13. In State of West Bengal Vs. Haresh C. Banerjee and Ors. (2006) 7 SCC 651 , this Court recognized that even when, after the repeal of Article 19(1)(f) and Article 31 (1) of the Constitution vide Constitution (Forty-Fourth Amendment) Act, 1978 w.e.f. 20th June, 1979, the right to property was no longer remained a fundamental right, it was still a Constitutional right, as provided in Article 300A of the Constitution. Right to receive pension was treated as right to property. Right to receive pension was treated as right to property. Otherwise, challenge in that case was to the vires of Rule 10(1) of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971 which conferred the right upon the Governor to withhold or withdraw a pension or any part thereof under certain circumstances and the said challenge was repelled by this Court. Fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognized as a right in “property”.” 9. In the said judgment it has also been held that withholding of pension or gratuity during pendency of the departmental proceeding or judicial proceeding is not provided under Rule 43 B. In this regard para 11 of the aforesaid judgment is quoted herein below. “11. Reading of Rule 43(b) makes it abundantly clear that even after the conclusion of the departmental inquiry, it is permissible for the Government to withhold pension etc. ONLY when a finding is recorded either in departmental inquiry or judicial proceedings that the employee had committed grave misconduct in the discharge of his duty while in his office. There is no provision in the rules for withholding of the pension/ gratuity when such departmental proceedings or judicial proceedings are still pending.” It has also been laid down in the said judgment that Executive instructions do not have statutory character and they are not law within the meaning of Article 300 A of Constitution of India and cannot supplement statutory rules. In this regard para 15 of the aforesaid judgment is quoted herein below; “15. It hardly needs to be emphasized that the executive instructions are not having statutory character and, therefore, cannot be termed as “law” within the meaning of aforesaid Article 300A. 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.” 10. By going through the ratio held in the aforesaid judgment it clearly transpires that in the facts and circumstances of the case the respondents were not authorized for withholding the pension or gratuity or other benefits. Had there been any such provision in these rules, the position would have been different.” 10. By going through the ratio held in the aforesaid judgment it clearly transpires that in the facts and circumstances of the case the respondents were not authorized for withholding the pension or gratuity or other benefits. The reliance of the Respondents with regard to the Memo No. 194 dated 16.06.2008 & Memo No. 115 dated 29.03.2010 of Finance Department is non-est in the eye of law in view of the law laid down in the aforesaid judgment that Executive instructions do not have statutory character and they are not law within the meaning of Article 300 A of Constitution of India and cannot supplement statutory rules. 11. Thus this court holds that pendency of the criminal case will not come on the way for payment of the pensionary benefits as prayed for in the instant writ application. 12. In view of the aforesaid facts and circumstances of the case and the judicial pronouncement the petitioner is entitled for post retiral benefits like MACP, Increments, Gratuity Earned Leave, pension fixation etc.; as such, the instant writ application, is hereby, allowed, directing the respondent-authorities to release the entire pensionary benefit including increment etc. including fixation of pension after verifying the relevant records of the petitioner within a period of three months from the date of receipt of copy of this order. 13. With the aforesaid terms, the instant writ application stands disposed of.