R. Veerabhadram vs Govt. Of A.P. on 11 August 1999
Bench: S V
Manohar, A Misra
1. Leave granted.
2. The appellant, at the material time was holding the post of Deputy
Secretary to the Government of Andhra Pradesh. On March 20, 1986, the
Anti-Corruption Bureau of the State of Andhra Pradesh registered a case against
the appellant under the Prevention of Corruption Act. On May 12, 1986, the
appellant was suspended from service. During the pendency of his suspension on
June 30, 1988, the appellant was allowed to retire on attaining the age of
superannuation while still under suspension without prejudice to the pending
proceedings against the appellant.
3. The appellant filed a Petition in the Andhra Pradesh Administrative
Tribunal challenging his retirement during suspension. The Tribunal, by its
order dated December 2, 1988, held inter alia, that in accordance with Rule 52
of the Andhra Pradesh Revised Pension Rules, 1980, the appellant shall be paid
provisional pension, but no death-cum-retirement gratuity shall be paid to him
till the judicial proceedings are concluded and the final order is passed
thereon. This order has become final and binding. Accordingly, on September 30,
1989, the Government of Andhra Pradesh issued an order for payment of
provisional superannuation pension. The order further stated that orders
regarding payment of gratuity would be issued separately.
4. According to the respondents, under Rule 52(c) of the A.P. Revised Pension
Rules, 1980, it is provided that no gratuity shall be paid to the Government
servant until the conclusion of the departmental or judicial proceedings and
issue of final orders thereon. The relevant portion of Rule 52 which deals with
payment of provisional pension and withholding of gratuity is as follows:
52. Provisional Pension where departmental or judicial proceedings may be
pending:
(a) In respect of a Government servant referred to in Sub-rule (9), the
Audit Officer/Head of Office shall pay the provisional pension not exceeding
the maximum pension which would have been admissible on the basis of qualifying
service up to the date of retirement of the Government servant, or if he was
under suspension on the date of retirement, up to the date immediately
preceding the date on which he was placed under suspension.
(b)...
(c) No gratuity shall be paid to the Government servant until the
conclusion of the departmental or judicial proceedings and issue of final
orders thereon.
5. The appellant, however, in July 1992, again requested the State
Government to sanction full pension, gratuity and other benefits as also
contended that he should be granted benefits on the basis of his being promoted
to the post of Joint Secretary to the Government of Andhra Pradesh. He,
thereafter, filed an application in the A.P. Administrative Tribunal praying
for an order directing the respondent to grant all arrears of pension,
death-cum-retirement gratuity, computation of pension from July 1, 1988 till
date as also consequential benefits on promotion to the post of Joint Secretary
to the Government from July 13, 1987 to June 30, 1988. The Tribunal dismissed
this application. The appellant filed a review petition before the Tribunal
which was also dismissed by the Tribunal in view of the pendency of the
criminal case against him.
6. The orders of the Tribunal in the main matter and the review petition
are challenged in these appeals. Long after these S.L.Ps were filed in this
Court, the appellant was acquitted in the criminal proceedings by an order
dated March 20, 1998. Thereafter, the appellant has been paid the full pension
as well as gratuity and other consequential benefits. In the present case, the
appellant now claims, for the first time, that he should be granted interest on
the gratuity which was withheld during the pendency of the criminal
proceedings. He claims interest for the period from June 30, 1988, that is to
say, the date of his retirement till October 27, 1998 when gratuity was paid.
The only other contention raised before us is that he should be granted all
monetary benefits on the basis of his entitlement to promotion to the post of
Joint Secretary in 1987. This contention was rejected by the Tribunal.
7. The payment of gratuity was withheld, in the present case, since the
criminal prosecution was pending against the appellant when he retired. Rule
52(c) of the A. P. Revised Pension Rules, 1980 expressly permits the State to
withhold gratuity during the pendency of any judicial proceedings against the
employee. In the present case, apart from Rule 52(c), there was also an express
order of the Tribunal which was binding on the appellant and the respondent
under which the Tribunal had directed that death-cum-retirement gratuity was
not to be paid to the appellant till the judicial proceedings were concluded
and final orders were passed thereon. In view of this order as well as in view
of Rule 52(c), it cannot be said that there was any illegal withholding of
gratuity by the respondent in the case of the appellant. We therefore, do not
see any reason to order payment of any interest on the amount of gratuity so
withheld.
8. Learned Counsel for the appellant has placed strong reliance on a
decision of this Court in the case of State of Kerala v. M. Padmanabhan Nair .
In that case, there was a delay in payment of gratuity to trie pensioner. the
Court said that since the delay was unexplained and unjustified and the State
was guilty of neglect in the discharge of its duties, interest should be
granted on delayed payment of gratuity. In the present case, there is no such
unjustified delay in payment of gratuity. Gratuity was withheld on legitimate
grounds as set out above.
9. The appellant has also relied upon a decision of the Gujarat High Court
in the case of Shah Babulal Balkrishna v. State of Gujarat reported in 1997 5
Serv LR 761 where the Court said that withholding the amount of gratuity
payable to the petitioner, when two departmental enquiries concluded in favour
of the petitioner, was unreasonable and arbitrary and the petitioner was
entitled to gratuity with interest at 12%. We do not find in the judgment a
reference to any rule which permitted withholding of gratuity. There is also
reference in the judgment to a Government Resolution which permits award of interest
@ 9%. However, the Court granted interest @ 12%. This case cannot, therefore,
be relied upon in the present case when there is an express Rule which permits
the Government to withhold gratuity and when there is also a binding order of
the Tribunal which has directed that death-cum-retirement gratuity should not
be paid until the judicial proceedings are concluded. In fact, in view of the
statutory Rules and the order of the Tribunal, it cannot be said that there is
any delay in the payment of gratuity. The appellant is, therefore, not entitled
to any interest on gratuity.
10. It is next contended that the appellant should be granted a deemed
promotion to the post of Joint Secretary prior to his retirement. The promotion
to the post of Joint Secretary is a promotion by selection and not by
seniority. The appellant, therefore, cannot claim any promotion from the date
on which his junior was promoted, since the basis for promotion is selection
and not seniority. The appellant, however, has relied upon a decision of this
Court in Sulekh Chand & Salek Chand v. Commissioner of Police reported in
1994 Supp (3) SCC 674. In that case also, the appellant had been charged with
an offence under the Prevention of Corruption Act and he was Kept under
suspension. However, when his turn came for promotion, he was considered for
promotion but he was promoted at a later date in view of the criminal
proceedings which ultimately ended in his acquittal. The Court held that once
there was an acquittal, he was entitled to reinstatement as if there was no
blot on his service. The material on the basis of which his promotion was
denied, did not now subsist and he should be promoted on the basis of the
Departmental Promotion Committee's findings. In the present case the appellant
was not considered for selection because of the pending criminal proceedings.
Since the promotional post is a selection post, there is no basis on which he
can now claim that he must be deemed to have been selected and hence he should
be granted the promotion. There is no basis on which we can hold that he would
have been selected when he was eligible for promotion. The decision, in the
above case, has no application here. The only other judgment on which the
appellant relied, in this connection is the judgment of the Rajasthan High
Court in Mohan Singh Bhati v. State of Rajasthan reported in 1998 1 Serv LR
684, where the Court said that after acquittal, the respondent was entitled to
reinstatement and all consequential monetary benefits. We fail to see how this
decision will help the appellant in the present case. On the contrary, in the
State of Mysore v. C.R. Seshadri , this Court has held that if the Rule of
promotion is one of sheer seniority, it may well be that promotion is a matter
of course. On the other hand, if merit is the rule, promotion is problematical
and it would be hazardous to assume that by efflux of time, the petitioner
would have got the promotion. The Court cannot speculate in retrospect whether
the petitioner would have been selected on merit and on the strength of such
"dubious hypothesis" direct retro-active promotion and back pay.
11. The appellant, therefore, is not entitled to any relief and the present
appeals are dismissed.
