Full Judgment
18. 01-2012 Feeling aggrieved by the order dated 12th December, 2011 made by the learned Single Judge in above CWJC No. 21943 of 2011, the writ petitioner has preferred this Appeal under Clause 10 of the Letters Patent. The appellant is the widow, heir and legal representative, of the deceased Government servant Chandeshwar Choudhary, Deputy Commissioner, Commercial Taxes. Late husband of the appellant was compulsorily retired from service by way of punishment. The order of compulsory retirement made against late Chandeshwar Choudhary was challenged by him under Article 226 of the Constitution of India in CWJC No. 8375 of 2008. Pending Patna High Court LPA No.32 of 2012 (3) dt.18-01-2012 2 the said petition, the said Chandeshwar Choudhary passed away. The petition was prosecuted by the heirs and legal representatives, the widow, the present appellant and the children. By judgment dated 13th July 2011, the learned Single Judge has dismissed the writ petition. However, the learned Single Judge has observed that the arrears of suspension allowance payable to the deceased Government servant be paid to his widow, the present appellant and she be paid other pensionary benefits that may be payable. We are informed that the aforesaid judgment has been challenged by the appellant and the others in Letters Patent Appeal No. 1611 of 2011. That appeal is pending. Pending the said appeal, the appellant filed above CWJC No. 21943 of 2011 to claim terminal benefits of pension, gratuity, salary, leave encashment, arrears of salary, if any and the interest thereon. In view of the observation made by the learned Single Judge, in CWJC No. 8375 of 2008, the learned Single Judge has dismissed the writ petition, therefore, this appeal. Learned Advocate Mr. Tuhin Shankar has appeared for the appellant. He has submitted that in spite of punitive compulsory retirement of the deceased Government servant, the appellant is entitled to family pension and other terminal benefits. He has relied upon Rule 46A of the Bihar Pension Rules, 1950. Rule 46A of the Bihar Pension Rules, 1950, provides for a discretionary pension in case of compulsory retirement by penalty. The said Rule empowers the Government to allow a pension to a Government servant retired compulsorily as a penalty. Let it be noted, the said Rule confers a right upon a Government servant, retired compulsorily as penalty, to apply for discretionary pension. The Government may grant such pension in its discretion. Thus, Patna High Court LPA No.32 of 2012 (3) dt.18-01-2012 3 the said Rule 46A can apply in case of Government servant alone. Such Government servant may be allowed a pension but the pension under the said Rule 46A cannot be claimed as a matter of course or as a matter of right. It is not brought on record whether the deceased Government servant had at any time applied for pension admissible under Rule 46A of the Bihar Pension Rules. Mr. Tuhin Shankar has, however, submitted that the deceased did apply for pension under Rule 46A of the Bihar Pension Rules, 1950. Be that as it may, if at all the deceased Government servant had applied for such pension; the appellant may pursue his application. The appellant, if so advised, may apply for family pension. If such applications are filed, the State Government will consider the same in accordance with law. However, in view of the compulsory retirement by way of punishment, the deceased Government servant was not entitled to any terminal benefits as a matter of right except the amount of Provident Fund. It is admitted in paragraph 5 of the memo that the amount of Provident fund was paid to the deceased Government servant. In above view of the matter, we do not see any merit in this Appeal. Appeal is dismissed in limine. (R.M. Doshit, CJ) Kanth/- (Birendra Prasad Verma, J)