- (1.) HEARD the counsel for the parties.
(2.) THE petitioner, a Reserve Veterinary Officer, posted in Regional Directorate, Ranchi, retired from service on 30/04/2004. When he was in service, he was put under suspension on 31/01/2002 after he was made an accused in fodder scam case. He retired from the service during the suspension period. After his retirement, by issue of Annexure -2 dated 31/07/2004, the respondents decided to initiate a departmental proceeding against the petitioner and it was directed to pay him 90% provisional pension only and to withhold 10% of his pension. The amounts of Gratuity as well as Leave Encashment amount were also ordered to be withheld till the pendency of the criminal case. It appears that a proceeding under Rule 43 (b) of the Bihar Pension Rules though was initiated against the petitioner but the same is still pending. The grievance of the petitioner is that 10 % of his pensions, full amount of Gratuity and Leave Encashment have illegally been withheld by the respondent authorities. His further grievance is that while counting the period of his service for computation of pension the period in between 29/01/2002 to 30/01/2004, i.e. the period of his suspension, has not been taken into consideration, causing serious monetary loss to him. Further grievance of the petitioner is that he has also not been given the benefit of ACP Scheme. It is stated that for redressal of his grievances, he made representation to the respondents concerned but no positive order has been passed as yet. Accordingly, a prayer has been made in this writ application by the petitioner to direct the respondents to pay all his retiral dues, which has illegally been withheld and also to direct the respondents to count the period of his suspension towards his period of service for computation of Pension and for giving benefit of ACP Scheme. Mr. Ajit Kumar, learned counsel appearing for the petitioner relying on a Full Bench decision of this Court in the case of "Dr. Dudh Nath Pandey -versus -State of Jharkhand and Ors., reported in 2007 (4) JCR 1  has submitted that it has been held by the Full Bench that the State Government has no power to withhold Gratuity and Pension during the pendency of departmental proceeding or criminal proceeding and the State Government has also no power to withhold Leave Encashment either prior to the proceedings or after conclusion of the proceeding. Mr. R. Krishna, learned senior Standing Counsel -I appearing for the State very fairly submitted that according to the Full Bench decision in "Dr. Dudh Nath Pandeys  case (supra), the petitioner is entitled to get his retiral dues as claimed by him, but so far as the question of promotion is concerned, he submitted that since a departmental proceeding is pending against the petitioner and, therefore, he cannot be given the benefit of ACP Scheme. According to him, even during contemplation of the departmental enquiry promotion can be withheld.
(3.) SO far as the question of counting the period of his suspension towards the period of service for computation of pension is concerned, it is submitted by Mr. Srivastava, learned counsel appearing for the Accountant General that since the State Government has not passed any specific order as required under Rule 97 (2) of the Bihar Service Code and, therefore, the period of suspension has not been counted for computing the pension. He further submitted that the State Government has already been requested to intimate its decision regarding treatment of period of suspension and to furnish sanction of full pension and Gratuity in respect to the petitioner but up till now no such decision has been communicated to the office of the Accountant General and, therefore, the period of suspension can not be taken into consideration for computing pension of the petitioner unless such decision is taken by the State Government. Rule 97 of the Bihar Service Code reads as under: -"97. (1) When a Government servant who has been dismissed, removed or suspended, reinstated, the authority competent to order the reinstatement shall consider and made specific order - (a) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty, and (b) whether or not the said period shall be treated as a period spent on duty. (2) Where the authority mentioned in sub -rule (1), is of opinion that the Government servant has been fully exonerated, or in the case of suspension, that it was wholly unjustified, the Government servant shall be given full pay and allowance to which he would have been entitled has he not been dismissed, removed or suspended, as the case may be. (3) In other cases, the Government servant shall be given such proportion of such pay and allowances as such competent authority may prescribe; Provided that the payment of allowances under clause (2) or clause (3) shall be subject to all other conditions under which such allowance are admissible. (4) In a case falling under clause the period of absence from duty shall not be treated as a period spent on duty, unless such competent authority specifically directs that it shall be so treated for any specified purpose; Provided that if the Government servant so desires such authority may direct that the period of absence from duty shall be converted into leave of any kind due and admissible to the Government servant. From a bare perusal of the Rule quoted above, I find that the submission of Mr. Srivastava, is correct that unless and until the specific order is passed by the State Government for treating the suspension period towards the service period, the period of suspension cannot be counted for computing the final pension. ;