Shri Y. Khevito Sema Vs State of Nagaland and 2 Ors.

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GAHC020000212025

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) KOHIMA BENCH

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Case No. : WP(C)/8/2025

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SHRI Y. KHEVITO SEMA RETIRED ADDITIONAL DIRECTOR DIRECTORATE OF TREASURIES AND ACCOUNTS NAGALAND KOHIMA P/A- H.NO. 95 BLOCK NO. I THILIXU VILLAGE 3RD MILE DIMAPUR NAGALAND

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VERSUS

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STATE OF NAGALAND AND 2 ORS REPRESENTED BY THE CHIEF SECRETARY GOVT. OF NAGALAND NAGALAND KOHIMA

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2:THE FINANCE COMMISSIONER GOVT. OF NAGALAND NAGALAND KOHIMA

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3:THE PRINCIPAL DIRECTOR DIRECTORATE OF TREASURIES AND ACCOUNTS GOVT. OF NAGALAND NAGALAND KOHIMA

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Advocate for : JOSHUA SHEQI

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Advocate for : GOVT ADV NL appearing for STATE OF NAGALAND AND 2 ORS

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BEFORE HON'BLE MR JUSTICE MRIDUL KUMAR KALITA

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For the Petitioner	:Ms. Mika H. Aye,Advocate
For the Respondents	:Mr.L.T. Sangtam, Addl. AG, Nagaland :Mr. V. Zhimomi, Government Advocate
Date of Hearing	: 12.08.2025
Date of Judgment	:19.08.2025

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JUDGMENT & ORDER

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1. Heard Ms. Mika H. Aye, learned counsel for the petitioner. Also heard Mr. L.T. Sangtam, learned Additional Advocate General, Nagaland along with Mr. V. Zhimomi, learned Government Advocate for the State respondent.

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2. This writ petition under Article 226 of the Constitution of India has been filed by the petitioner, namely, Shri Y. Khevito Sema seeking appropriate directions to the respondent authorities on being aggrieved due to not releasing his due pensionary benefits to him.

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3. The facts relevant for consideration of the instant writ petition, in brief, are that when the petitioner was serving as the Senior Treasury Officer at Zunheboto Treasury under the Department of Finance, Government of Nagaland. He was arrested in connection with GR Case No. 80/2016 which was registered on the basis of FIR which was lodged by the DAG(A&E) before the Director General of Police, Nagaland, Kohima. It was alleged in the FIR that in Zunheboto Treasury fraudulent drawal of pension by using fake pension payments order was going on. The

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petitioner sought for voluntary retirement with effect from 1^st of October, 2020. Accordingly, by notification No. FIN/TA/2-15/89 dated 11^th of February, 2021, the petitioner was released from service on voluntary retirement with effect from 31.01.2021 on domestic ground. In the aforesaid release order, it was specifically mentioned that in view of State Police Crime Station Case No. 01/2016 (G.R. Case No. 80/2016) pending against him, the payment of pension and retirement benefits shall be made only after outcome of the said case.

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4. Ms. Mika H. Aye, learned counsel for the petitioner submits that the petitioner has not being given his pensionary benefits merely because a criminal case bearing GR Case No. 80/2016, wherein, the name of the petitioner has been shown as an accused in the charge-sheet, is pending in the Court of learned Chief Judicial Magistrate, Kohima, Nagaland.

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5. The learned counsel for the petitioner has submitted that in the aforesaid GR Case No. 80/2016, there are total 41 numbers of enlisted witnesses are there in the charge-sheet, however, till date only three prosecution witnesses have been examined. She submits that at this pace, the trial will take long time for culmination and the petitioner has been illegally deprived of his due pensionary benefits without any statutory provision for doing so.

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6. The learned counsel for the petitioner has also submitted that in the meanwhile one of the co-accused of GR Case No. 80/2016, namely, K. TovilyYeptho was granted pension by the respondent authorities immediately after the retirement of the said person. The learned counsel for the petitioner has submitted that the petitioner is standing on similar footing like that of the other co-accused, whose pensionary benefits were released

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immediately on retirement. She submits that by treating the petitioner differently from the above named co-accused, though they stand on same footing, the fundamental rights of the petitioner guaranteed to him under Article 14 of the Constitution of India has been violated.

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7. The learned counsel for the petitioner has submitted that the right to receive pension has been recognized, in a catena of judgment of the Apex Court, as a right to property under Article 300A of the Constitution of India. She submits that the petitioner cannot be deprived of his right to receive pension without any statutory provision providing for the same. She submits that a person cannot be deprived of his pension without the authority of law which is the constitutional mandate as provided under Article 300A of the Constitution of India. In support of her submission, the learned counsel for the petitioner has cited a ruling of the Apex Court in the case of “ State of Jharkhand and Others Vs. Jitendra Kumar Srivastava & Another , reported in “ (2013) 12 SCC 210 ”. She has also cited a ruling of a Co-ordinate Bench of this Court in the case of “ Bahnisikha Dutta Vs. State of Assam and Ors. ” reported in “ (2021) 2 GLT 587 ” as well as a ruling of the High Court of Bombay in the case of “ Purushottam Kashinath Kulkarni and Ors. Vs. State of Maharashtra and Ors .” reported in “ 2016 SCC OnLine Bom 1112 ”.

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8. On the other hand, Mr. L. T. Sangtam, learned Additional Advocate General has submitted that the petitioner was voluntary retired by notification dated 11^th of February, 2021 and in the said notification it has been specifically mentioned that due to pendency of G.R. Case No. 80/2016 (SCPS Case No. 01/2016) payment of his pension and retirement benefits will be made only after the outcome of the pending criminal proceeding against him. However, he did not object to the said conditions.

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9. The learned Additional Advocate General, Nagaland has also submitted that by invoking the provisions of Rule 9(4) of the Central Civil Services (Pension) Rules, 1972 provisional pension as provided in Rule 69 shall be sanctioned. He further submits that under Rule 69(1)(c) of the said Rules, the petitioner is not entitled to receive gratuity benefit until the conclusion of pending criminal case against him.

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10. I have considered the submissions made by the learned counsel for both sides and have gone through the materials available on record.

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11. In the instant case, it appears from the materials available on record that the petitioner has already retired from service on voluntary retirement. However, there is nothing on record to show that his due pension has been released to him rather an illegal stipulation has been mentioned in his release order that due to pendency of criminal trial, his pension as well as retirement benefits were not released.

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12. It is no longer res integra that right to receive pension has been held to be a right to property protected under Article 300A of the Constitution of India. It has been provided in Article 300A of the Constitution of India that no person shall be deprived of his property save by authority of law. The pension is payable to the Government employee because of long, continuous and dedicated period of service rendered by the retired employee. It is not to be treated as a bounty payable at the will and pleasure of the Government.

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13. In the instant case, it appears that a criminal case i.e., GR Case No. 80/2016 has been pending against the petitioner before the Court of the learned Chief Judicial Magistrate, Kohima, Nagaland.

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14. On perusal of the copy of the letter No. FIN/ROP/3/83 dated 18^th

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of June, 1987, which was produced by the learned Additional Advocate General during the course of hearing of this case. On perusal of the said letter, it appears that the Government of Nagaland has adopted the Central Civil Services (Pension) Rules, 1972 for the purpose of its applicability on the State Government employees.

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15. It also appears that as per Rule 9(4) of the Central Civil Services (Pension) Rules, 1972, it is provided that in the case of Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under subrule (2), a provisional pension as provided in Rule 69 shall be sanctioned.

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16. Rule 69 of the Central Civil Services (Pension) Rules, 1972 provides as follows:-

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“69. Provisional pension where departmental or judicial proceedings may be pending

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(1) (a) In respect of a Government servant referred to in sub-rule (4) of Rule 9, the Accounts Officer shall authorize the provisional pension equal to 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.

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(b) The provisional pension shall be authorized by the Accounts Officer during the period commencing from the date of retirement up to and including the date on which, after the conclusion of departmental or judicial proceedings, final orders are passed by the competent authority.

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(c) No gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of

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final orders thereon:

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Provided that where departmental proceedings have been instituted under Rule 16 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, for imposing any of the penalties specified in Clauses (i), (ii) and (iv) of Rule 11 of the said rules, the payment of gratuity shall be authorized to be paid to the Government servant.

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(2) Payment of provisional pension made under sub-rule (1) shall be adjusted against final retirement benefits sanctioned to such Government servant upon conclusion of such proceedings but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or the pension is reduced or withheld either permanently or for a specified period.

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17. On perusal of the above provisions, it appears that as per Rule 69(1)(c) of the Central Civil Services (Pension) Rules, 1972, no gratuity will be admissible to the Government servant concerned until conclusion of the departmental or judicial proceeding. In the instant case, no departmental proceeding is pending against the present petitioner, however, the criminal proceeding, namely, G.R. Case No. 80/2016 is still pending against the petitioner.

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18. It appears that even if the Government applies the provisions of Central Civil Services (Pension) Rules, 1972 to the case of present petitioner, he cannot be deprived of his entire pension during pendency of the criminal proceeding. Under Rule 9(4) of the Central Civil Services (Pension) Rules, 1972, the petitioner is entitled to get provisional pension, though, his gratuity may be withheld under Rule 69(1)(c) of the aforesaid Rules during the pendency of such criminal proceeding.

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19. In the instant case, fact remains that the petitioner has not even been communicated his release order and has not been given any

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pensionary benefits. Though, this Court is of considered opinion that the petitioner is entitled to receive his provisional pension in accordance with relevant provisions of Central Civil Services (Pension) Rules, 1972 discussed herein above, however, he has been illegally deprived of the same by the respondent authorities, thereby infringing his constitutional rights guaranteed to him under Article 300A of the Constitution of India as well as his fundamental rights under Articles 14 and 21 of the Constitution of India.

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20. In view of above, the respondents herein are directed to immediately release the provisional pension to which the petitioner is entitled to in view of the discussions made in the foregoing paragraphs of this judgment. Same shall be done in pursuant to the applicable Rules, as indicated herein above. Since, deprivation of due pension (in the instant case provisional pension) to the petitioner would amount to deprivation of his livelihood, the respondents are directed to comply with this judgment as expeditiously as possible but in no case later than three months from the date of this judgment.

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21. This writ petition is accordingly disposed of.

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JUDGE

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Comparing Assistant

Shri Y. Khevito Sema v. State of Nagaland and 2 Ors.

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