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2025 DIGILAW 1644 (JHR)

Anand Kumar v. State of Jharkhand

2025-08-08

SUJIT NARAYAN PRASAD, TARLOK SINGH CHAUHAN

body2025
JUDGMENT : Sujit Narayan Prasad, J. Prayer: 1. This writ petition has been filed under Article 226 of the Constitution of India inter alia for the following reliefs: (i) Directing the Respondents to declare Sub-Rule (c) of Rule 43 of the Jharkhand Pension (Amendment) Rules, 2018, as ultra vires, unconstitutional, and violative of Articles 14, 16, and 21 of the Constitution of India, as stated in [Annexure No.-20]. (ii) Strike down Sub-Rule (c) of Rule 43 in its entirety, as it conflicts with the Jharkhand Government Servants (Classification, Control, and Appeal) Rules, 2016 and lacks statutory force against retired employees. (iii) Directing the Respondents to ensure the petitioner’s fundamental rights are upheld in accordance with the Constitution of India by setting aside or amending the impugned rule. (iv) Sub-Rule (c) lacks sufficient statutory basis and exceeds the powers granted by the parent legislation. It cannot override the settled principles laid down by this Hon’ble Court and the Supreme Court. AND (v) To quash the impugned order dated 25.06.2024 passed by Respondent No. 2 (Principal Secretary, Forest, Environment, and Climate Change Department, Jharkhand) via letter dated 25.06.2024, which rejected the petitioner’s pensionary claims arbitrarily and without lawful justification, despite previous clear-cut directions issued by this Hon’ble Court Vide W.P.(S) No. 3650 of 2023. [Annexure No.-21, 18]. (vi) Provide financial upgradation under the 2 nd Assured Career Progression (ACP) and 3 rd Modified Assured Career Progression (MACP) schemes. (vii) Release the withheld pension commutation, retirement gratuity, leave encashment, and travel allowance (TA) for post-retirement settlement. (viii) Calculate and henceforth, disburse: (a)The gratuity amount, accounting for two years of in-service training/probation. (b)Payment for unused earned leave and sanctioned leave treated as without salary ignoring previous order of this Hon’ble Court. (c)Finalize and fix full and final pension from the retirement date which is 31st March 2023, including the two-years training period in the calculations. AND (ix) Direct the respondents to comply with orders dated 30.09.2024 passed by this Hon’ble Court vide W.P.(S) No. 5610 of 2009, which not only set aside prior major punishment orders against the petitioner but granted consequential benefits, including arrears of Salary and financial upgradation in 2 nd ACP and 3 rd MACP schemes from the actual assessment of time [Annexure No.-25]. (x) Direct the respondents to grant promotions to the petitioner to higher posts (ACF, DCF, and CF), which have been unfairly withheld due to ongoing departmental proceedings since 2012. The continued delay violates the precedent set by the Hon’ble Supreme Court in Civil Appeal No. 958 of 2010 (Prem Nath Bali vs. Registrar, High Court of Delhi & Anr.), wherein it was held that departmental proceedings must be concluded within a reasonable time and prolonged delays are unjust and prejudicial to the affected party. (xi) Award statutory and penal interest at 12% on the unpaid amounts, calculated from the retirement date (31st March 2023) until actual disbursement, along with costs for the current and previous petitions. (xii) Pending the final disposal of this petition, the Petitioner humbly prays for an interim stay on the operation of Sub-Rule (c) of Rule 43 of the Jharkhand Pension (Amendment) Rules, 2018, and a direction to release full and final pensionary benefits with its entire consequential benefits. 2. The brief facts of the case as per the pleadings made in the writ petition needs to refer herein which reads as under: (i) It is pleaded that the petitioner was appointed as a Gazetted Range Forest Officer in 1991 and underwent in service training from 1992 to 1994. Upon successful completion of the training, he submitted a joining report on 01.08.1994 at the Secretariate Headquarters in Patna, Bihar and following the bifurcation of the erstwhile State of Bihar, he was allotted to the Jharkhand Cadre and submitted a joining report on 01.06.2004 at the Secretariat of the Department of Forest and Environment, Government of Jharkhand. (ii) It is pleaded that the petitioner, appearing in-person, is a retired Range Forest officer of the Jharkhand cadre of this State. He was superannuated from service after attaining the age of superannuation on 31.03.2023 and is entitled to pensionary benefits but the respondent-State on one reason or the other has denied to give pensionary benefits to him. (iii) It is pleaded that Enquiry officer, Ehteshmul Haque, has to submit a report against the petitioner aligned with their references. Mr. Haque declined to comply and returned the entire departmental proceedings to the Respondents without any findings. (iii) It is pleaded that Enquiry officer, Ehteshmul Haque, has to submit a report against the petitioner aligned with their references. Mr. Haque declined to comply and returned the entire departmental proceedings to the Respondents without any findings. The respondents forwarded the ongoing departmental proceedings to another Enquiry Officer, Sri Vivek Narayan Akhauri, employing the same fraudulent and manipulative tactics, the respondents ensured that the proceedings were returned without any inquiry being concluded. (iv) It is pleaded that on 16.11.2022 Enquiry Officer, Shri Arbind Kumar refused to comply with the Respondents’ alleged ulterior motives regarding the baseless charges against the petitioner and returned the entire proceedings without rendering any findings. (v) It is pleaded that on 26.11.2024 Enquiry Officer, Shri Kamal John Lakra, forwarded departmental proceedings for inquiry. Shri Lakra, evidently unable to withstand the coercive tactics and undue pressure imposed by the respondents, refused to conduct even a single day of inquiry. (vi) The respondents issued a second show-cause notice (Letter No. 3094) dated 21.07.2018, levying serious charges against the petitioner. However, even after lapse of seven years, no documentary evidence has been provided. (vii) It is pleaded that the respondents issued Resolution No. 14127 dated 26.12.2012 limited the time frame 105 days for concluding departmental proceedings. (viii) It is pleaded that the arbitrary issuance of letters no. 2349 and 2356 dated 22.06.2023, without following due process and after the petitioner’s retirement on 31.03.2023, renders the proceedings unsustainable. (ix) It is pleaded that the Hon’ble Supreme Court, on 16.12.2015 in the case of “ Prem Nath Bali appellants vs. Registrar, High Court of Delhi & Anr. ” Vide Civil Appeal No. 958 of 2010, held that all employers, including the State, must conclude departmental inquiries within a reasonable timeframe, ideally within six months and not exceeding one year. (x) It is pleaded that the petitioner has made complaint against the respondents, involving the illegal sale of forest land, sale of valuable timber to mafias, and embezzlement of government funds exceeding Rs.1000 crore. These allegations were communicated to the Chief Secretary through Letter No. 1494 dated 10.04.2018 but till date no action has been taken in this regard. (xi) It is pleaded that the petitioner lodged four criminal cases against the controlling and senior officers who involved in the embezzlement of government funds and raised concerns with the DIG by letter no. These allegations were communicated to the Chief Secretary through Letter No. 1494 dated 10.04.2018 but till date no action has been taken in this regard. (xi) It is pleaded that the petitioner lodged four criminal cases against the controlling and senior officers who involved in the embezzlement of government funds and raised concerns with the DIG by letter no. 51 on date 17.03.2015; the request for action was summarily dismissed. (xii) It is pleaded that petitioner filed a complaint to the Chief Secretary, Jharkhand exposing financial embezzlement of Rs. 425.35 lakhs against the respondents. (xiii) It is pleaded that the petitioner challenged the illegal appointment of Assistant Conservators of Forests (ACF). (xiv) It is pleaded that the petitioner challenged the illegal promotion of PCCF, Jharkhand, namely, B.C. Nigam and obtained an order dated 12.08.2024, the respondents retaliated by initiating several baseless proceedings. (xv) It is pleaded that the petitioner challenged these illegal reappointments through W.P. (S) Filing No. 12785 of 2024, an order dated 13.01.2025. Petitioner’s actions were driven by the need to combat gross administrative illegality. (xvi) It is pleaded that the respondents, issued suspension Letter No. 3451 dated 13.08.2018 which was against the petitioner. This punitive action, clearly motivated by malice, was linked to six ongoing departmental proceedings initiated since 2012. (xvii) It is pleaded that the respondents issued a deemed suspension order (Letter No. 2362) dated 22.06.2023, a full three months after superannuation of the petitioner. (xviii)It is pleaded that the petitioner filed W.P. (S) No. 721 of 2022 before this Hon’ble Court, challenging the unlawful suspension and an order was passed by revoking the suspension and a direction was passed to accept the joining of the petitioner and resolve the issue of pending salary and due to non-compliance of the order of this Court a contempt case being Contempt Case (Civil) No.347 of 2023 was filed by the petitioner which was disposed of on 28.07.2023 with liberty to the petitioner to work out his remedy in accordance with law. (xix) It is pleaded that the petitioner filed W.P. (S) No. 721 of 2022 before this Hon’ble Court, challenging the unlawful suspension and an order passed dated 10.11.2022. (xx) It is pleaded that the petitioner seeks redressal of pensionary benefits from this Hon’ble Court by filing W.P. (S) No. 3650 of 2023. (xix) It is pleaded that the petitioner filed W.P. (S) No. 721 of 2022 before this Hon’ble Court, challenging the unlawful suspension and an order passed dated 10.11.2022. (xx) It is pleaded that the petitioner seeks redressal of pensionary benefits from this Hon’ble Court by filing W.P. (S) No. 3650 of 2023. This Hon’ble Court, by its order dated 09.04.2024, directed the respondents to resolve the petitioner’s grievances and issue a reasoned order. (xxi) It is pleaded that the petitioner (in-Person) with no alternative but to file a contempt petition bearing Cont. Case (Civil) No. 674 of 2024 before this Hon’ble Court, which was disposed of vide order dated 13.12.2024 with liberty to the petitioner to take steps in connection with the reasoned order in accordance with law. (xxii) It is pleaded that the respondents issued a reasoned order declined grievances to the petitioner, vide Letter No. 2374 dated 25.06.2024, without assigning any lawful justification for their actions. (xxiii)It is pleaded that the Divisional Forest Officer, Medininagar Forest Division send several letter No. 3364, 3365, 3366 and 3367 on 31.12.2024 via Speed Post which were received by the petitioner (in-person) on date 06.01.2024 communicating that an enquiry has been setup on 17.12.2024 against the departmental proceeding in the chamber of Enquiry Officer, namely, Sunil Kumar who is a retired officer and reappointed as an inquiry officer in this case before issuing letter to the petitioner. (xxiv) It is pleaded that the petitioner requested the original charge memo and supporting documents, including evidence and witness details, through a letter dated 17.12.2024, referring to Letter Nos.4662, 4663, and 4664 dated 06.12.2024. (xxv) It is pleaded that the petitioner requested through letters dated 07.01.2025 and 09.01.2025 to provide relevant documents with regard to inquiry, but the respondents failed to provide the original charge memo, supporting documents, and evidence, violating the petitioner’s right to a fair inquiry. (xxvi)It is pleaded that the petitioner has repeatedly highlighted the lack of fairness in departmental inquiries, particularly the absence of articles of charges, verifiable evidence, and witness details. The respondents’ failure to act or respond demonstrates a misuse of disciplinary powers intended to intimidate and harass the petitioner. (xxvii) It is pleaded that petitioner (in-person) challenged the illegal major punishment of censure and withholding of three increments with cumulative effect in W.P. (S) No. 5610 of 2009. The respondents’ failure to act or respond demonstrates a misuse of disciplinary powers intended to intimidate and harass the petitioner. (xxvii) It is pleaded that petitioner (in-person) challenged the illegal major punishment of censure and withholding of three increments with cumulative effect in W.P. (S) No. 5610 of 2009. This Hon’ble Court, vide its detailed and unequivocal order dated 30.09.2024, quashed the punishment and appellate orders, terming them grossly unlawful. (xxviii) It is pleaded that the respondents have unlawfully withheld the petitioner’s full and final pension, including the amounts due for gratuity and unused earned leave, citing the impugned Sub-Rule (c) of Rule 43 of the Jharkhand Pension (Amendment) Rules, 2018. 3. Being aggrieved, the writ petitioner has filed the present writ petition for the aforesaid reliefs. Argument on behalf of the writ petitioner: 4. The petitioner in-person has submitted that the insertion of Rule 43(c) in the Statute book is ultra vires to the Constitutional right to get pension as has been laid down by the Hon’ble Apex Court that the pension is not a bounty but it is right to property. Alternatively, the argument has been advanced that even otherwise, the proceedings which have been initiated against the party in-person is prior to the insertion of Rule 43 (c) in the Statute book and, hence, the provision of Rule 43 (c) will not be applicable with retrospective effect. 5. The party in-person has submitted that the pension although has been fixed but not yet finalized, as also the gratuity is not being paid even though there is no finding either in the departmental or judicial proceeding such withholding the benefit of finalization of pension and the gratuity is only on the pretext of pending proceeding in view of the provision of Rule 43 (c) is not to be extended, therefore, the present writ petition. Argument on behalf of the Respondent-State: 6. Per contra, Mr. Indranil Bhaduri, the learned State counsel has submitted that while the writ petitioner was in service the departmental proceedings have been initiated which culminated into the order of punishment. The other departmental proceedings which have been initiated since are pending and, as such, in view of the provision of Rule 43(c), the pension cannot be finalized and even the gratuity cannot be paid. Analysis: 7. We have heard the learned counsel for the parties and gone through the pleadings made in the writ petition. The other departmental proceedings which have been initiated since are pending and, as such, in view of the provision of Rule 43(c), the pension cannot be finalized and even the gratuity cannot be paid. Analysis: 7. We have heard the learned counsel for the parties and gone through the pleadings made in the writ petition. 8. It needs to refer herein that the Secretary, Forest, Environment and Climate Change Department, Government of Jharkhand has been called upon by the order passed by this Court on 29.07.2025 and in pursuant thereto he appeared before this Court. 9. We have heard the learned counsel appearing for the parties as well as the Secretary, Forest, Environment and Climate Change Department, Government of Jharkhand and directed the Secretary of the concerned department to come with the original record so that the concerned Secretary to come prepared on the issue of applicability of the provision of Rule 43(c) of the JHARKHAND PENSION RULES , 2000. 10.The Secretary of the concerned department is present along with the details of the pending departmental proceedings and the departmental proceedings which have been concluded. 11. This Court after having heard the learned counsel for the parties has dispensed with the personal appearance of the concerned Secretary vide a separate order passed on 30.07.2025 while reserving the judgment. 12.The matter is being heard even though the issue of validity of statutory provision of 43 (c) has not been raised rather the argument has been advanced on the question of applicability of it and with the consent of the learned counsel for the parties, the matter is being heard on the aforesaid issue without relegating the matter to the learned Single Judge taking into consideration requires that the issue involved in the present case is with respect to finalization of pension and the disbursement of the amount of gratuity which is not being done by the State-respondent. 13. The issue of pension having not to be considered as bounty has been considered by the Hon’ble Apex Court in the case of “ Deokinandan Prasad vs. State of Bihar & Ors. ” reported in (1971) 2 SCC 330 wherein at paragraph-33 it has been held which reads as under: “33. 13. The issue of pension having not to be considered as bounty has been considered by the Hon’ble Apex Court in the case of “ Deokinandan Prasad vs. State of Bihar & Ors. ” reported in (1971) 2 SCC 330 wherein at paragraph-33 it has been held which reads as under: “33. Having due regard to the above decisions, we are of the opinion that the right of the petitioner to receive pension is property under Article 31(1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Article 19(1)(f) and it is not saved by sub-article (5) of Article 19. Therefore, it follows that the order, dated June 12, 1968, denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19(1)(f) and 31(1) of the Constitution, and as such the writ petition under Article 32 is maintainable. It may be that under the Pension Act (Act 23 of 5 1871) there is a bar against a civil court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of writ of mandamus being issued to the State to property consider the claim of the petitioner for payment of pension according to law.” 14. It is evident from the factual aspect that several departmental proceedings have been initiated against the writ petitioner while he was in service. The some of the departmental proceedings have been concluded and the order of punishment has been awarded in the same while the writ petitioner was in service. The other departmental proceedings which have been initiated while the writ petitioner was in service but not concluded even the writ petitioner has retired from the service after attaining the age of superannuation with effect from 31.03.2023. 15. The provision of Rule 43 (c) has been inserted in the JHARKHAND PENSION RULES ,2000 on 23.07.2018. The background of insertion of Rule 43 (c) in the Statute book of JHARKHAND PENSION RULES , 2000 is the judgment rendered by the Full Bench of this Court in the case of “Dudh Nath Pandey (Dr.) v. State of Jharkhand ” , 2007 SCC OnLine Jhar 487 and “ State of Jharkhand and Ors. Vs. Jitendra Kumar Srivastava and Anr ” . , ( 2013) 12 SCC 210. 16. Vs. Jitendra Kumar Srivastava and Anr ” . , ( 2013) 12 SCC 210. 16. The Full Bench of this High Court in the case of “ Dudh Nath Pandey (Dr.) v. State of Jharkhand ” (supra) has categorically held that on the ground of pending either departmental or judicial proceeding the pension/leave encashment cannot be withheld, for ready reference the relevant paragraphs of the aforesaid judgment are being referred herein as: “26. It is noticed that there is no statute, rule or any law, which empowers the State Government to withhold the leave encashment. As mentioned earlier, Rule 43(a) and 43(b) would not provide for the withholding of leave encashment. Under those circumstances, the Respondents took the stand that the withholding of the leave encashment was under the circular issued by the Finance Department. 38. In the light of the above ruling, we are to hold that the circular issued by the Finance Department has no force of law and as such would not confer any power to withhold the leave encashment, which is termed as a property. To sum up the answer for the two questions are as follows: (i) Under Rule 43(a) and 43(b) of Bihar Pension Rules, there is no power for the Government to withhold gratuity and pension during the pendency of the departmental proceeding or criminal proceeding. It does not give any power to withhold leave encashment at any stage either prior to the proceeding or after conclusion of the proceeding. (ii) The circular, issued by the Finance Department, referring to the withholding of the leave encashment would not apply to the present facts of the case as it has no sanctity of law. Both the questions are answered accordingly”. 17. The Hon’ble Apex Court while rendering the judgment in the case of “ State of Jharkhand and Ors. Vs. Jitendra Kumar Srivastava and Anr. ” , ( supra ), has also taken into consideration of the judgment rendered by the Full Bench of this Court in “ Dudh Nath Pandey (Dr.) v. State of Jharkhand ” (supra) has observed that a 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 and there is no provision in the Rules for withholding of the pension/gratuity when such departmental proceedings or judicial proceedings are still pending. For ready reference the relevant paragraph of the aforesaid Judgment is being quoted as under: “ 13. A 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.” 18. In the aforesaid Judgment the Hon’ble Apex Court has further observed that pension is not a bounty, rather it is a right to property, for ready reference the relevant paragraph of the aforesaid Judgment is being referred herein as: 8. It is an accepted position that gratuity and pension are not 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 v. Union of India [ (1983) 1 SCC 305 : 1983 SCC (L&S) 145] by D.A. Desai, J. who spoke for the Bench, in his inimitable style, in the following words: (SCC pp. 319-20, paras 18-20) “18. 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? 19. 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? 19. 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. 20. The antiquated notion of pension being a bounty a gratuitous 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 Deokinandan Prasad v. State of Bihar [ (1971) 2 SCC 330 : 1971 Supp SCR 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 anyone’s discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters 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 v. Iqbal Singh [ (1976) 2 SCC 1 : 1976 SCC (L&S) 172 : (1976) 2 LLJ 377 ] .” It is thus a hard earned benefit which accrues to an employee and is in the nature of “property”. This right to property cannot be taken away without the due process of law as per the provisions of Article 300-A of the Constitution of India. This right to property cannot be taken away without the due process of law as per the provisions of Article 300-A of the Constitution of India. 19.The State of Jharkhand thereafter by way of amendment has amends the rules of “ JHARKHAND PENSION RULES , 2000” and inserted the sub-rule (c) in Rule 43 of JHARKHAND PENSION RULES , 2000, for ready reference the sub rule (c) in Rule 43 of JHARKHAND PENSION RULES , 2000 is being referred herein as: "(c) Where any departmental or judicial proceeding is instituted or continued against an officer/employee who has retired on attaining the age of compulsory retirement or otherwise, he shall be sanctioned by the Government which instituted such proceeding, 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 the maximum pension which would have been admissible on the basis of his qualifying service upto the date of retirement, or if he was under suspension on the date of retirement, upto the date immediately preceding the date on which he was placed under suspension, but no gratuity or death-cum-retirement gratuity shall be paid to him until the conclusion of such proceedings and the issue of final orders thereon." 20. It needs to refer herein the provision of Rule 43 (b) wherein it has been provided that only in a case of finding guilty either in the departmental or judicial proceeding the full or part of the pension can be withheld, for ready reference the Rule 43 (b) of JHARKHAND PENSION RULES , 2000 is being referred herein as: “43(b) The State Government further reserve to themselves 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 the Government if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct; or to have cause pecuniary loss to Government by misconduct or negligence, during the service including service rendered on re-employment after retirement: Provided that – (a) such departmental proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment; (i) shall not be instituted save with the sanction of the State Government; (ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and (iii) shall be conducted by such authority and at such place or places as the State Government may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made; (b) judicial proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment, shall have been instituted in accordance with sub-clause (ii) of clause (a); and (c) the Jharkhand Public Service Commission, shall be consulted before final orders are passed. ” 21.The statutory provision as contained under Rule 43 (b) has been interpreted by the Hon’ble Apex Court in the case of “ Dudh Nath Pandey (Dr.) v. State of Jharkhand” (supra) and “ Jitendra Kumar Srivastava” . The State of Jharkhand in order to neutralize the effect of the judgment rendered by the Hon’ble Apex Court in the case of “ Jitendra Kumar Srivastava” (supra) has come out with the insertion of Rule 43 (c) in the JHARKHAND PENSION RULES , 2000. The State of Jharkhand in order to neutralize the effect of the judgment rendered by the Hon’ble Apex Court in the case of “ Jitendra Kumar Srivastava” (supra) has come out with the insertion of Rule 43 (c) in the JHARKHAND PENSION RULES , 2000. 22.The party in-person in the midst of argument has submitted that otherwise also the statutory provision as contained under the provision of Rule 43 (c) will not come in the way of release of pensionary benefit which also includes gratuity because after initiation of departmental proceeding, the sub-rule(c) in Rule 43 of “ JHARKHAND PENSION RULES , 2000” has been inserted as such, for the present he is arguing only on the issue of applicability of the provision of Rule 43 (c). 23.This Court, therefore, has not gone into the issue of validity of Rule 43 (c), rather as agreed between the parties has gone into the issue of the applicability of provision of Rule 43 (c) as to whether the provision of Rule 43 (c) is applicable retrospectively. 24. It would be apt to refer herein that the law is well settled that the statutory provision is not to be implemented with retrospective effect unless provided under the statute for applying with retrospective effect, the reference in this regard is made to the judgment rendered by the Hon’ble Apex Court in “ P. Mahendran v. State of Karnataka ” , (1990) 1 SCC 411 wherein at paragraph-5, it has been observed which reads as: "5. It is well settled rule of construction that every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the Rules showing the intention to affect existing rights the rule must be held to be prospective. If a rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only. In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure. The amending Rules of 1987 do not contain any express provision giving the amendment retrospective effect nor there is anything therein showing the necessary intendment for enforcing the rule with retrospective effect. In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure. The amending Rules of 1987 do not contain any express provision giving the amendment retrospective effect nor there is anything therein showing the necessary intendment for enforcing the rule with retrospective effect. Since the amending Rules were not retrospective, it could not adversely affect the right of those candidates who were qualified for selection and appointment on the date they applied for the post, moreover as the process of selection had already commenced when the amending Rules came into force, the amended Rules could not affect the existing rights of those candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment moreover construction of amending Rules should be made in a reasonable manner to avoid unnecessary hardship to those who have no control over the subject matter."." 25. In another judgment rendered by Hon’ble Apex Court in “ K.S. Paripoornan v. State of Kerala , (1994) 5 SCC 593 , it has been held ” which reads as under: "A substantive law is held to be prospective as a matter of legal policy since it is founded on public policy that no right be so created as to work to the disadvantage for whom it is created as it if be so, "it would be betrayal of what the law stands for."" 26. It is further evident from the provision of Rule 43 (b) of JHARKHAND PENSION RULES , 2000, particularly, the explanation part wherein it has been referred that the date will be said to be initiation of departmental proceeding from which the proceeding will be said to be initiated. The departmental proceeding will be said to be initiated when the date of memorandum of charge has been issued or decision has been taken to initiate a departmental proceeding. While in the case of judicial proceeding the date when the charge-sheet has been submitted before the competent Court of jurisdiction, the judicial proceeding will be said to be pending. 27.This Court in order to consider the applicability of the provision of Rule 43 (c) in the light of the settled proposition of law, that any Statute cannot be given retrospective application unless specifically been stipulated in the Statutory provision. 28. 27.This Court in order to consider the applicability of the provision of Rule 43 (c) in the light of the settled proposition of law, that any Statute cannot be given retrospective application unless specifically been stipulated in the Statutory provision. 28. Admittedly, the provision of Rule 43 (c) has been inserted with effect from July 2018 having no reference of its retrospective application, and, as such, said provision of Rule 43 (c) will be prospectively applied. 29.Adverting to the factual aspect pertaining to initiation of departmental proceedings, we have considered the date of initiation of departmental proceeding, for ready reference the same is being referred herein as : 30. It is evident from the above tabular chart that all the proceedings have been initiated prior to insertion of provision of Rule 43 (c) in the Statute book, i.e, the Jharkhand Pension Rules, 2000, as such, as per the settled position of law that if any proceeding will be initiated retrospective to the insertion of the statutory provision, the said statutory provision will not come in the way. However, one of the proceedings was initiated after the insertion of the provision of Rule 43 (c) but as would be evident from Rule 43(c) which was issued by virtue of the departmental Circular No. 4055 dated 28.09.2018, but it is evident by the reference of the said departmental proceeding, as referred in serial no.8 of the tabular chart in the preceding paragraph, that the said proceeding deemed to be converted under the provision of Rule 43 (b) of Jharkhand Pension Rules, 2000. Once the said provision has been converted under the provision of Rule 43(b), meaning thereby, there cannot be any further decision by applying the provision of Rule 43(c) of the Jharkhand Pension Rules, 2000. The said departmental proceeding even though has been initiated after insertion of the provision of Rule 43 (c) even then the rider as referred in Rule 43(c) of the Jharkhand Pension Rules, 2000 will not be applicable since it is admitted case of the respondent-State that the departmental proceeding initiated in course of the service of the writ petitioner deemed to be converted under the provision of Rule 43 (b). Therefore, the Rule 43(c) is also not applicable so far as the said departmental proceeding vide departmental Circular N0. 4055 dated 28.09.2018 is concerned. 31. Therefore, the Rule 43(c) is also not applicable so far as the said departmental proceeding vide departmental Circular N0. 4055 dated 28.09.2018 is concerned. 31. Herein, the proceeding which has been initiated against the writ petitioner after the insertion of the provision of Rule 43(c) in JHARKHAND PENSION RULES , 2000 in which the punishment has already been imposed, therefore, the same is not coming in the way of disbursement of pension in pursuant to the provision under Rule 43(c) of the JHARKHAND PENSION RULES , 2000. 32.It is evident from the aforesaid fact as referred hereinabove that a departmental proceeding has been initiated in all the cases prior to insertion of the provision of Rule 43 (c) in the JHARKHAND PENSION RULES , 2000, hence, the provision of Rule 43 (c) since is not applicable retrospective application and, as such, in the proceeding which has been initiated prior to insertion of the provision of Rule 43 (c) in the JHARKHAND PENSION RULES , 2000 will not govern by the provision of Rule 43 (c), rather the same will be governed by the provision of Rule 43 (b) of the JHARKHAND PENSION RULES , 2000. 33.This Court, in view of the aforesaid, is of the considered view that withholding of fixation of final pension including gratuity at the fag end of service by the State-respondent in the light of the discussions made hereinabove, on the factual as well as the legal aspect, cannot be said to be justified and, accordingly, it is held to be unjustified in view of the settled position of law that merely on the ground of pending proceeding either the departmental or judicial proceedings the pension cannot be withheld which is not a bounty rather right to property. 34. Further, the provision of Rule 43 (c) is having no retrospective application, hence, the action of the respondent-State of Jharkhand in not finalizing the pension including the non-disbursement of the amount of gratuity is held to be improper and unjustified. 35.Accordingly, the writ petition is allowed with a direction upon the State-respondent to forthwith fix and finalize the pension of the petitioner as also to release the amount of gratuity within a period of six weeks from the date of receipt/production of a copy of this order. 36.With the aforesaid observation and direction, this writ petition stands allowed to the aforesaid extent. 36.With the aforesaid observation and direction, this writ petition stands allowed to the aforesaid extent. 37.Pending I.As, if any, stands disposed of.