Page No.# 1/19 GAHC010049912023 2026:GAU-AS:9059 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/1322/2023 DR. ARUP JYOTI BHUYAN S/O- LT. RATNESWAR BHUYAN, H.NO. 35, ARUNUDOI PATH, P.O. AND P.S. HATIGAON, ASSAM, PIN- 781036 VERSUS THE STATE OF ASSAM AND 5 ORS REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, ANIMAL HUSBANDRY AND VETERINARY DEPTT., DISPUR, GHY-06 2:THE PRINCIPAL SECRETARY ANIMAL HUSBANDRY AND VETERINARY DEPTT. CHENIKUTHI GUWAHATI ASSAM- 781003 3:THE PROJECT OFFICER PROJECT OFFICER (CRASH) INTENSIVE EGG AND POULTRY PRODUCTION ANIMAL HUSBANDRY AND VETERINARY DEPTT. KHANAPARA GUWAHATI ASSAM- 781022 4:THE ACCOUNTANT GENERAL (A AND E) ASSAM MAIDAMGAON BELTOLA GUWAHATI ASSAM- 781029 5:THE COMMISSIONER AND SECRETARY Page No.# 2/19 TO THE GOVT. OF ASSAM PENSION AND PUBLIC GRIEVANCES DEPTT. DISPUR GHY-06 6:THE DIRECTOR OF PENSION ASSAM HOUSEFED COMPLEX DISPUR GHY-0 Advocate for the Petitioner : MR. A K BARUAH, MR A DAS,MR. N MAHAJAN Advocate for the Respondent : SC, AG, SC, A.H and V. DEPT.,GA, ASSAM BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR ORDER Date : 22.06.2026 Heard Mr. A K Baruah, Learned Counsel for the Petitioner. Also heard Ms. M Kataki, Learned Standing Counsel, Department of Animal Husbandry and Veterinary, Assam, appearing for Respondent Nos. 1, 2 & 3, Mr. R K Talukdar, Learned Standing Counsel, Accountant General (A&E), Assam, appearing for the Respondent No. 4 and Ms. K Phukan, Learned Government Advocate appearing for Respondent Nos. 5 & 6. 2. The Petitioner, in the present Writ Petition, has prayed for a direction upon the Respondent authorities, to authorize to him, his regular pension, as well as, other pensionary benefits, Page No.# 3/19 including Gratuity, Leave Encashment, GIS, etc. 3. The facts in brief, requisite for adjudication of the issues, arising in the present Writ Petition, is noticed as under. 3.1. The Petitioner, while working as a Sub-Divisional Animal Husbandry & Veterinary Officer, came to be placed under arrest on 23.11.2021, in connection with Kokrajhar Police Station Case No. 817/2021. On the detention of the Petitioner, in connection with the said criminal case and he having remained under detention for more than 48 (Forty-Eight) hours, the Petitioner was, vide order dated 26.11.2021, placed under suspension by invoking the provisions of Rule 6 (2) of the Assam Services (Discipline & Appeal) Rules, 1964. The Petitioner was, thereafter, enlarged on bail by the Ld. Trial Court, vide order dated 29.12.2021. 3.2. The Petitioner was, thereafter, issued with a show- cause notice dated 12.01.2022, instituting against him, a departmental proceeding. The Petitioner, on 24.01.2022, submitted his show-cause reply. The Petitioner, thereafter, during the pendency of the said departmental proceeding, instituted Page No.# 4/19 against him, retired from his services on 31.12.2022. As the subsistence allowance of the Petitioner, w.e.f 23.02.2022 till 31.12.2022, as well as, non-finalization of his pension and pensionary benefits, the Petitioner has instituted the present Writ Petition. 4. Mr. A K Baruah, Learned Counsel for the Petitioner, by reiterating the facts noticed, hereinabove, has submitted that the Petitioner was authorized a provisional pension, in pursuance to the directions passed by this Court, vide order dated 13.03.2023, in the present proceedings. Mr. A K Baruah, Learned Counsel for the Petitioner has submitted that the Petitioner, having retired from his services on reaching the age of superannuation, he is entitled to be authorized his pension and pensionary benefits. Mr. A K Baruah, Learned Counsel for the Petitioner submits that the Respondent authorities, however, have not authorized to him his due pension and pensionary benefits. 4.1. By referring to the Provisions of Rule 21 of the Assam Services (Pension) Rules, 1969, (hereinafter referred to as the Rules of 1969), Mr. A K Baruah, Learned Counsel for the Page No.# 5/19 Petitioner submits that the power to withhold pension, is provided in the provisions of Rule 21 of the said Rules. He submits that the said power is reserved to the Governor and the power is permissible to be so exercised, only in the event, in a departmental or judicial proceeding, initiated against the retired Government Servant, he is found guilty of commission of misconduct or negligence, during his period of service, including services rendered upon re-employment after retirement. Mr. Baruah, submits that against the Petitioner, no such finding having been recorded in any departmental and/or judicial proceeding, as on the date of his superannuation, the provisions of Rule 21, was not permissible to be so invoked. He submits that even in the criminal proceedings, instituted against the Petitioner, the same is pending at the stage of investigation. As regards the departmental proceedings instituted against the Petitioner, vide the show-cause notice dated 12.01.2022, it is submitted that the said proceedings have also not been taken to its logical conclusion. 4.2. Accordingly, he submits that the withholding of the Petitioner’s pension and pensionary benefits has been so done in Page No.# 6/19 clear violation of the provisions of Rule 21 of the Rules of 1969. 4.3. Mr. A K Baruah, Learned Counsel for the Petitioner, in support of his submissions, has relied upon the following decisions of the Hon’ble Supreme Court of India and also by this Court in the cases of : (1) State of Jharkhand and Ors. Vs. Jitendra Kumar Srivastava and Ors. reported in (2013) 12 SCC 210. (2) Nirupam Borthakur Vs. State of Assam and Ors. reported in (2025) GAU-AS : 12728. (3) Bahnisikha Dutta Vs. State of Assam and Ors. reported in (2021) 2 GLT 587. (4) Bhagaban Chandra Sarmah Vs. State of Assam and Ors. reported in (2017) LabIC 1908. (5) Md. Mukibul Islam Vs. The State of Assam and 3 Ors. – Judgment and Order dated 30.11.2023, so passed in W.P.(C) No. 2235 of 2013. (6) Birendra Kumar Rajbangshi Vs. State of Assam and Ors. reported in (2016) 4 GLT 920. (7) Sri Satya Narayan Prasad Gupta Vs. The State of Page No.# 7/19 Assam and 4 Ors. – Judgment and Order dated 15.07.2015, so passed in W.P(C) No. 5662 of 2014. 4.4. Mr. A K Baruah, Learned Counsel for the Petitioner has further submitted that the entitlement of pension and pensionary benefits, in respect of a retired Government Servant, is to be so ascertained, as on the date of his superannuation. As on the date of his superannuation, the Petitioner not being found guilty, either in a departmental proceeding and/or a criminal proceeding instituted against him, there was no occasion of invocation of the powers, under Rule 21 of the Rules of 1969 and accordingly, the pension and pensionary benefits of the Petitioner, would not be permissible to be so withheld. He submits that the authorization of the pension and pensionary benefits of the Petitioner, however, would be subject to future good conduct which would depend upon the outcome of the departmental, as well as, criminal proceedings, instituted against the Petitioner. 4.5. Mr. A K Baruah, Learned Counsel for the Petitioner further submits that although Rule 22 is to operate in the Page No.# 8/19 interregnum, during the pendency of the departmental proceeding or a judicial proceeding, against a retired employee, he submits that given the intent behind grant of pension and pensionary benefits, it would be the provisions of Rule 21, that would have an overriding effect over the provisions of Rule 22. 4.6. In the above premises, Mr. Baruah submits that this Court would be pleased to direct the respondent authorities to authorize to the petitioner his due pension and pensionary benefits, w.e.f. the date subsequent to the date he had proceeded on superannuation. Mr. Baruah submits that the pension and pensionary benefits as required to be authorized to the petitioner would, however, be subject to the final outcome of the proceedings, pending against the petitioner. 5. Ms. M Kataki, Learned Standing Counsel, Department of Animal Husbandry and Veterinary, Assam, appearing for Respondent Nos. 1, 2 & 3, submits that, admittedly, against the Petitioner, a departmental proceeding having been instituted on 12.01.2022, the same having not been concluded, the same is now being continued under the provisions of Rule 21 of the Page No.# 9/19 Rules of 1969. She submits that in view of the express language used in the provisions of Rule 22 of the Rules of 1969, a Government employee, covered under the provisions of Rules of 1969, would not be entitled to be granted regular pension, as well as, Gratuity, till conclusion of such proceedings. She submits that the Petitioner is entitled only to a provisional pension and is not entitled to a Gratuity till the conclusion of the proceedings, instituted against him, and passing of final orders, thereon. 6. I have heard the Learned Counsel for the Parties and perused the materials available on record. 7. The facts noticed, hereinabove, are not in dispute. 8. The Petitioner was placed under arrest on 23.11.2021. In pursuance to such arrest, the Petitioner was placed under suspension, vide issuance of an order dated 26.11.2021, by invoking the provisions of Rule 6 (2) of the Rules of 1964. The claim made by the petitioner is that the criminal proceeding, as well as, the departmental proceedings, instituted against him, having not been taken to its logical conclusion and the petitioner not being found to be guilty, with regard to the charges framed Page No.# 10/19 against him, therein, the respondent authorities could not have, in view of the provisions of Rule 21 of the Rules of 1969, proceeded to withhold the pension and pensionary benefits of the petitioner. 9. The petitioner has, accordingly, projected that the action on the part of the respondent authorities in not authorizing to the petitioner his pension amounts to withholding of his pension and the same is in clear violation of the provision of Rule 21 of the Rules of 1969. 10. The provisions of Rule 21 being relevant is extracted here-in-below:- “21. The Governor of Assam reserves to himself 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 Government, if in a departmental or judicial proceeding the pensioner is found guilty of grave misconduct or negligence during the period of his service, including, service rendered upon re-employment after retirement provided that- (a) such departmental proceeding, if instituted while the officer was in service, whether before his retirement or during his re-employment, shall, after the final retirement of the officer, be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the officer had continued in service; [Explanation. -The continuation of the proceeding after Page No.# 11/19 the final retirement of the officer shall be automatic under sub-rule (a) of Rule 21 and no freshdecision of the Governor and/or the Appointing Authority nor any show cause notice to the person concerned shall be necessary. The powers under Rule 21 shall be exercisable not only in case of causing pecuniary loss to Government but also in all other cases. (b) such departmental proceeding, if not instituted while the officer was in service, whether before his retirement or during his re-employment- (i) shall not be instituted save with the sanction of the Governor of Assam; (ii) shall not be in respect of any event which took place more than 4 years before such institution; and (iii) shall be conducted by such authority and in such place as the Governor of Assam may direct and in accordance with procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the officer during his service; (c) no such judicial proceeding, if not instituted while the officer was in service, whether before his retirement or during his re-employment, shall be instituted in respect of a cause of action which arose or an event which took place more than 4 years before such institution; and (d) the Assam Service Commission shall be consulted before final orders are passed. Explanation. - For the purpose of this rule- (a) a departmental proceeding shall be deemed to be instituted on the date on which the statement of charges is issued to the officer or pensioner, or if the officer has been placed under suspension from an earlier date, on such date; and (b) a judicial proceeding shall be deemed to be instituted- (i) in the case of a criminal proceeding, on the date on which the complaint or report of the police officer, on which the Magistrate takes cognizance, is made, and (ii) in the case of a civil proceeding, on the date of presentation of the plaint in the Court." Page No.# 12/19 11. A perusal of the provision of Rule 21 would reveal that the Governor of Assam has reserved to himself 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 of a pension of the whole or part of a pecuniary loss to the Government, if in a departmental or a judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment. The explanation, as appended to the Rule 21, defines departmental proceeding for the purpose of the Rule to have been instituted on a date when the statement of charges is issued to the Government servant and/or pensioner, as the case may be and if the officer has been placed under suspension from an earlier date. A judicial proceeding has been defined to mean in respect of a criminal proceeding the date on which the complaint or report of a police officer on which a magistrate takes cognizance is made. In other words, in the terms of Rule 21, a judicial proceeding shall be deemed to have been instituted against an officer and/or a pensioner, as the case Page No.# 13/19 may be on the date the charge-sheet is so submitted by the Investigating Agency before the competent court and/or the court takes cognizance of a complaint lodged against the officer concerned. In the case on hand, a departmental proceeding, having been instituted against the Petitioner, vide issuance of a show-cause notice on 12.01.2022 and the same having remained pending, the bar under Rule 22 of the Rules of 1969, stood attracted, to the case of the Petitioner. 12. Having noticed the above position, this Court would now consider the provision of Rule 22(1) of the Rules of 1969. The same, being relevant, is extracted here-in-below:- “22. (1) Where any departmental or judicial proceeding is instituted under Rule 21 or where a departmental proceeding is continued under clause (a) of the proviso thereto against an officer who has retired on attending the age of compulsory retirement or otherwise, he shall be paid during the period commencing from the date of his retirement to the date on which upon conclusion of such proceeding, final order are passed, a provisional pension not exceeding the maximum pension which would have been admissible on the basis of his qualifying service up to the date of retirement, 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; but no gratuity or death-cum-retirement gratuity shall be paid to him until the conclusion of such proceeding and the issue of final order thereon." 13. The provision of Rule 22(1) of the Rules of 1969 mandates that where any departmental or a judicial proceeding Page No.# 14/19 is instituted under Rule 21 or a departmental proceeding is continued under Clause-(a) of the proviso, thereto, against an officer, who has retired on attaining the age of compulsory retirement or otherwise, shall be paid 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, up to the date of retirement or if he was under suspension on the date of retirement, up to the date immediately presiding the date on which he was placed under suspension. Provisions of Rule 22 further bars release of gratuity or death cum retirement gratuity (DCRG) to such officer, until the conclusion of such proceeding and issue of final orders, thereon. In other words, during the pendency of a judicial proceeding and/or a departmental proceeding against an officer, after he has proceeded on superannuation, only a provisional pension would be permissible to be so authorized to the officer concerned and he would not be entitled to draw gratuity and/ or DCRG. 14. Having noticed the provisions of the Rules, the Page No.# 15/19 contentions raised by the learned counsel for the petitioner is now being examined. The learned counsel for the petitioner had made his submission only by relying on the provisions of Rule 21 of the Rules of 1969 and had not factored in the provisions of Rule 22(1) of the Rules of 1969. The provisions of Rule 21 of the Rules of 1969, in the considered view of this Court, cannot be read in isolation, dehors, the provisions of Rule 22(1). The provisions of Rule 22(1), in respect of a pensioner against whom a departmental and/or a judicial proceeding is pending has to be given primacy over the provisions of Rule 21. The provisions of Rule 22, in the considered view of this Court, operates during the period of pendency of a departmental and/or judicial proceeding against the petitioner and, thereafter, in the event the petitioner is found to be guilty, in either of the said proceedings, the provisions of Rule 21 would become operative. Accordingly, the non-authorization of regular pension and DCRG to the petitioner, in the considered view of this Court, is not erroneous. 15. The petitioner, in support of his contention has relied upon a decision of the Hon'ble Supreme Court rendered in the case of Jitendra Kr. Srivastava (Supra), this Court on Page No.# 16/19 perusal of the said judgment finds that, therein, the Hon'ble Supreme Court had considered the provisions similar to one as contained in Rule 21 of the said Rules of 1969, existing in the provisions of the Bihar Pension Rules, more particularly, Rule 43(b) thereof. The Hon'ble Supreme Court in the said case had not considered a provision similar to the one contained in the provisions of Rule 22(1) of the Rules of 1969. The conclusions drawn by the Hon'ble Supreme Court in the said decision being one so drawn, solely basing on the provisions of Rule 43(b) of the Bihar Pension Rules, the said decision, in the considered view of this Court, would have no application to the fact situation arising in the present writ petition. It is settled position of law that a slight difference in facts shall render the ratio of a decision relied upon to be inapplicable to the facts of the case. Accordingly, this Court is of the considered view that the decision of the Hon'ble Supreme Court rendered in the case of Jitendra Kr. Srivastava (Supra) shall not advance the case of the petitioner. 16. The learned counsel for the petitioner has, thereafter, relied upon a decision of a Coordinate Bench of this Page No.# 17/19 Court rendered in the case of Birendra Rajbangshi (Supra). This Court has perused the said decision of the Coordinate Bench of this Court and finds that the said decision was so rendered solely noticing the provisions of Rule 21 of the Rules of 1969. The provisions of Rule 22 was not brought to the notice of the Coordinate Bench and accordingly, the same was not so considered by it while `rendering the judgment in the case of Birendra Rajbangshi (Supra). Accordingly, this Court is of the considered view that the said decision would not advance the case of the petitioner, herein. 17. The other decisions relied upon by the Petitioner is also perused by this Court. On a close perusal of the said decision relied upon by the Petitioner, this Court finds that, therein, either the provisions of Rule 22 of Rules of 1969, was not attracted and if so attracted, the same was not considered. Accordingly, this Court is of the considered view that the said decisions would not advance the case of the Petitioner, herein. 18. In view of the above discussions, this Court is of the considered view that the petitioner at this stage would not be Page No.# 18/19 entitled to a direction for being authorized with his regular pension and final DCRG. The petitioner, in the considered view of this Court, would be entitled only to a provisional pension and would also not be entitled to a provisional DCRG. However, the provision of Rule 22(1), having only barred the release of gratuity and DCRG, this Court is of the considered view that the petitioner would be entitled to the other pensionary benefits like leave encashment, GIS etc. which is required to be authorized by the department concerned. Accordingly, while not accepting the claim of the petitioner for being authorized his regular pension and final DCRG, this Court directs the respondent authorities to release to the petitioner his other retirement benefits not barred by the provisions of Rule 22(1) of the Rules of 1969, like leave encashment benefits, GIS etc. This Court further directs that the petitioner shall be continued to be paid his provisional pension till conclusion of the proceedings, presently pending against him. The subsistence allowances of the Petitioner, in arrears, as on date, be also released to the Petitioner, within a period of 1 (One) month from the date of receipt of a certified copy of this order. Page No.# 19/19 19. With the above observations and directions, the present Writ Petition stands disposed of. JUDGE Comparing Assistant