Shafaet Ahmad Khan Suri vs The State of Bihar through Additional Chief Secretary,

IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.13113 of 2026
CNR No. BRHC010804712026
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Shafaet Ahmad Khan Suri Son of Hakim Abdul Ghaffar Khan, Resident of
Mohalla-New Miradpur, P.S.-Bihar Sharif, District- Nalanda.... Petitioner/s
Versus
1. The State of Bihar through Additional Chief Secretary, Education Depart-
ment, Government of Bihar, Patna.
2. Director, Primary Education, Department of Education, Government of Bi-
har, Patna.
3. District Education Officer, Bihar Sharif, Nalanda.
4. District Programme Officer (Establishment) Nalanda at Biharsharif, District-
Nalanda.
5. Block Education Officer, Silao, Disrict- Nalanda.
6. Headmaster, Upgraded Urdu Middle School, Sabhait, District- Nalanda.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Durga Nand Jha, Advocate
For the Respondent/s : Mrs.Archana Jha, GP 40
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CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL JUDGMENT
Date : 02-11-2026
Heard Mr. Durga Nand Jha, learned counsel appearing
on behalf of the petitioner and Mrs. Archana Jha, learned GP 40
for the State.
2. The petitioner in paragraph no. 1 of the present writ
petition has sought inter alia following relief(s), which is
reproduced hereinafter:-
“(i) Issuance of a writ in the nature of mandamus directing
and commanding the Respondents to pay the retiral dues
including pension in NPS, Gratuity, leave encashment along
with due salary for the period 19.11.2014 to 10.01.2024
alongwith interest at the rate of 18% with penal interest as
the petitioner retired on 30.09.2024 and about 2 years have
been elapsed.
(ii) Issuance of an appropriate declaration that the
petitioner is entitled to gratuity amounting to Rs. 4,97,240-
00, leave encashment amounting to Rs. 3,55,368-00, NPS
amounting to Rs.5,72,383=57 as is deposited in treasury
and due salary amounting to Rs. 50,12,262=00 and those

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dues are required to be paid to petitioner at the earliest with
interest and penal interest.
(iii) Issuance of further declaration that once pursuant to
order dated 20.02.2019 passed in CWJC No. 14138/2014
the petitioner has been allowed to continue in sense till his
retirement, the petitioner is fully entitled to his due arrears
from 01.11.2024 with interest and panel interest.
(iv) Any other relief or reliefs be granted to petitioner to
which the petitioner is found to be entitled.”
3. Mr. Durga Nand Jha, learned counsel appearing on
behalf of the petitioner submitted that during the pendency of
the present writ petition, the respondents have brought on record
the order contained in Memo No. 5701 dated 15.09.2026 by
way of Annexure 'A' to the counter affidavit filed on behalf of
respondent no.3
4. Learned counsel further submitted that without
properly adjudicating upon the petitioner's claim for payment of
salary for the period from 19.11.2014 to 10.01.2024, the
concerned authority has proceeded to reject the same without
considering the applicable rules and the settled principles of law.
It is contended that the rejection of the petitioner's claim for
salary for the aforesaid period is punitive in nature, particularly
when no order imposing any penalty upon the petitioner was
ever passed and no disciplinary proceeding was initiated against
him consequent upon his suspension. In the absence of any
disciplinary proceeding or order of punishment, the action taken
against the petitioner cannot be sustained in the eye of law.
5. Learned counsel referring to various decisions of

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this Court, as well as, the Hon'ble Supreme Court and
particularly to the relevant provisions of the Bihar Government
Servants (Classification, Control and Appeal) Rules, 2005,
submitted that the District Programme Officer (Establishment),
Nalanda has exceeded his jurisdiction in rejecting the
petitioner's claim. Accordingly, the impugned order warrants
interference of this Court.
6. Learned State Counsel, on the other hand, admitted
that no information has been furnished as to whether any
disciplinary proceeding was initiated against the petitioner after
he was placed under suspension for the period from 19.11.2014
to 10.01.2024. Learned counsel further submitted that in the
light of the order passed by this Court in CWJC No.14138 of
2014, vide order dated 20.02.2019, the petitioner's case has not
been found to be similar to that of the writ petitioners, whose
reference has been made in paragraph no. 7 of the present writ
petition.
7. Having heard the rival submissions made on behalf
of the parties, as well as, having considered the specific
directions issued by this Court in CWJC No. 14138 of 2014,
vide order dated 20.02.2019, it transpires that the petitioner was
permitted to continue in service till the date of his

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superannuation, i.e., 20.01.2024. However, the impugned order
contained in Memo No. 5701 dated 15.09.2026 does not
disclose any reason as to why the petitioner's case has not been
treated at par with that of the petitioners in CWJC No. 14138 of
2014 or with those of other similarly situated employees whose
particulars have been referred to by the petitioner in paragraph
no. 7 of the writ petition.
8. In this regard, paragraph no. 7 of the writ petition is
being reproduced hereinbelow inter alia as under :
"7. That in similar case and similarly employees have been
directed to be paid from the date of termination treating their
services as continuous vide memo no.4887 dated 13.11.2023,
vide memo no.1127 dated 9.4.2024, memo no.1191
dated13.4.2024, vide memo no.43 dated 8.01.2025 and vide
memo no.1812 dated 16.03.2026 and petitioner is being
shown hostile discrimination. Even retiral dues have not been
paid to petitioner."
9. The Hon’ble Supreme Court in case of Constable
Uma Shankaran vs. Union of India & Ors., Special Leave
Petition (C) Nos. 6903–6904 of 2020, decided on 19.01.2026 ,
wherein the Hon’ble Supreme Court observed that payment of
back wages/arrears of pay upon setting aside an order of
dismissal is not an automatic consequence and ordinarily
depends upon whether the employee remained unemployed
during the intervening period. However, where an employee is
prevented from discharging his duties due to an illegal action

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of the employer and the termination is subsequently held to be
unlawful, such employee has a legitimate claim to be restored
to the position he would have occupied but for the illegal
action. The employer, having declined to accept the employee's
services despite his willingness to work, cannot escape the
consequences of its own unlawful action. The relevant
observations of the Hon’ble Supreme Court are reproduced
inter alia as under:
“8. We are conscious of the law that ordering
back wages to be paid to a dismissed employee – upon his
dismissal being set aside by a court of law – is not an
automatic relief and, ordinarily, is dependent on the
employee being not employed in the interregnum. However,
the general rule is that if the employer by reason of its
illegal act deprives any of its employees from discharging
his work and the termination is ultimately held to be bad
in law, such employee has a legitimate and valid claim to
be restored with all that he would have received but for
being illegally kept away from work. This is based on the
principle that although the employee was willing to
perform work, it was the employer who did not accept
work from him and, therefore, if the employer’s action is
held to be illegal and bad, such employer cannot escape
from suffering the consequences.
9. In the light of the afore-stated legal position,
the High Court ought to have undertaken an exercise to
ascertain whether the writ petitioner was gainfully
employed in the interregnum before denying arrears of
salary/ back wages. However, this exercise was not done. In
our view, as already sufficient time has elapsed since the
date of High Court’s order and the order of reinstatement
with benefit of continuity in service has attained finality, we
do not consider it appropriate to remand the matter for
such an exercise. Consequently, we have examined the
counter affidavit of the respondent to ascertain whether any
plea has been taken that the appellant was gainfully
employed elsewhere in the interregnum. On perusal of the
counter affidavit, we find that the counter affidavit
emphasizes more on the plea that there should not have
been a direction for reinstatement than on providing any

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material to show that the appellant was gainfully
employed elsewhere. As the plea to deny reinstatement has
already been rejected by the High Court, and its direction
for reinstatement has attained finality, in absence of any
plea that the appellant was gainfully employed elsewhere
in the interregnum, in our view, Maharashtra SRTC v.
Mahadeo Krishna Naik, (2025) 4 SCC 321 there appears
no good reason to deny back wages/ arrears of pay .”
(emphasis supplied)
10. In the facts and circumstances of the present
case, the respondent authorities have illegally withheld the
salary of the petitioner for the period from 19.11.2014 to
10.01.2024. Accordingly, the claim of the petitioner for
payment of the withheld salary is legitimate.
11. Law at same time is well settled by the Hon’ble
Supreme Court that pension is not a bounty or gratuitous
payment, but a valuable and vested right earned by an
employee through his service, which partakes the character of
property under Article 300-A of the Constitution of India in
case of State of Jharkhand & Ors. v. Jitendra Kumar
Srivastava & Anr. , reported in (2013) 12 SCC 210 , reiterating
the principles laid down in case of D.S. Nakara & Ors. v.
Union of India, reported in (1983) 1 SCC 305 . It has further
been held that under Rule 43(b) of the Bihar Pension Rules, the
State Government is not empowered to withhold pension
merely on account of pendency of departmental or judicial
proceedings, and such power can be exercised only upon

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conclusion of such proceedings resulting in a finding of grave
misconduct or pecuniary loss to the Government. In the present
case, admittedly, no departmental proceeding was ever initiated
against the petitioner during his service tenure or was pending
against him on the date of his superannuation, nor has any such
proceeding been initiated till date. Thus, withholding of the
petitioner’s pensionary benefits, in the absence of any such
proceeding or finding of misconduct, is wholly impermissible
and contrary to the law laid down by the Hon’ble Supreme
Court. The relevant paragraphs of Jitendra Kumar Srivastava
(supra) are inter alia as under:
8. It is an accepted position that gratuity and
pension are not bounties. An employee earns these benefits
by dint of his long, continuous, faithful and unblemished
service. Conceptually it is so lucidly described in D.S.
Nakara v. Union of India [(1983) 1 SCC 305 : 1983 SCC
(L&S) 145] by D.A. Desai, J. who spoke for the Bench, in
his inimitable style, in the following words: (SCC pp. 319-
20, paras 18-20)
“18. The approach of the respondents raises a
vital and none too easy of answer, question as to why
pension is paid. And why was it required to be liberalised?
Is the employer, which expression will include even the
State, bound to pay pension? Is there any obligation on the
employer to provide for the erstwhile employee even after
the contract of employment has come to an end and the
employee has ceased to render service?
19. What is a pension? What are the goals of
pension? What public interest or purpose, if any, it seeks to
serve? If it does seek to serve some public purpose, is it
thwarted by such artificial division of retirement pre and
post a certain date? We need seek answer to these and
incidental questions so as to render just justice between
parties to this petition.
20. The antiquated notion of pension being a

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bounty a gratuitous payment depending upon the sweet will
or grace of the employer not claimable as a right and,
therefore, no right to pension can be enforced through court
has been swept under the carpet by the decision of the
Constitution Bench in Deokinandan Prasad v. State of
Bihar [(1971) 2 SCC 330 : 1971 Supp SCR 634] wherein
this Court authoritatively ruled that pension is a right and
the payment of it does not depend upon the discretion of the
Government but is governed by the rules and a government
servant coming within those rules is entitled to claim
pension. It was further held that the grant of pension does
not depend upon anyone's discretion. It is only for the
purpose of quantifying the amount having regard to service
and other allied matters that it may be necessary for the
authority to pass an order to that effect but the right to
receive pension flows to the officer not because of any such
order but by virtue of the rules. This view was reaffirmed in
State of Punjab v. Iqbal Singh [(1976) 2 SCC 1 : 1976 SCC
(L&S) 172 : (1976) 2 LLJ 377] .”
It is thus a hard earned benefit which accrues
to an employee and is in the nature of “property”. This
right to property cannot be taken away without the due
process of law as per the provisions of Article 300-A of the
Constitution of India.
9. Having explained the legal position, let us
first discuss the rules relating to release of pension.
10. The present case is admittedly governed by
the Bihar Pension Rules, as applicable to the State of
Jharkhand. Rule 43(b) of the said Pension Rules confers
power on the State Government to withhold or withdraw a
pension or part thereof under certain circumstances. This
Rule 43(b) reads as under:
“ 43. (b) The State Government further reserve
to themselves the right of withholding or withdrawing a
pension or any part of it, whether permanently or for
specified period, and the right of ordering the recovery from
a pension of the whole or part of any pecuniary loss caused
to the Government if the pensioner is found in departmental
or judicial proceeding to have been guilty of grave
misconduct; or to have caused pecuniary loss to the
Government by misconduct or negligence, during his
service including service rendered on re-employment after
retirement:”
11. From the reading of the aforesaid Rule
43(b), following position emerges:
(i) The State Government has the power to
withhold or withdraw pension or any part of it when the
pensioner is found to be guilty of grave misconduct either in

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a departmental proceeding or judicial proceeding.
(ii) This provision does not empower the State
to invoke the said power while the departmental proceeding
or judicial proceeding are pending.
(iii) The power of withholding leave
encashment is not provided under this Rule to the State
irrespective of the result of the above proceedings.
(iv) This power can be invoked only when the
proceedings are concluded finding guilty and not before.
12. There is also a proviso to Rule 43(b),
which provides that:
(a) such departmental proceedings, if not
instituted while the government servant was on duty either
before retirement or during re-employment;
(i) shall not be instituted save with the
sanction of the State Government;
(ii) shall be in respect of an event which took
place not more than four years before the institution of such
proceedings; and
(iii) shall be conducted by such authority and
at such place or places as the State Government may direct
and in accordance with the procedure applicable to
proceedings on which an order of dismissal from service
may be made—
(b) judicial proceedings, if not instituted while
the government servant was on duty either before retirement
or during re-employment, shall have been instituted in
accordance with sub-clause (ii) of clause (a); and
(c) the Bihar Public Service Commission, shall
be consulted before final orders are passed.
It is apparent that the proviso speaks about the
institution of proceedings. For initiating proceedings, Rule
43(b) puts some conditions i.e. departmental proceeding as
indicated in Rule 43(b), if not instituted while the
government servant was on duty, then it shall not be
instituted except:
(a) With the sanction of the Government,
(b) It shall be in respect of an event which took
place not more than four years before the institution of the
proceedings.
(c) Such proceedings shall be conducted by the
enquiry officer in accordance with the proceedings by
which dismissal of the services can be made.
Thus, insofar as the proviso is concerned that

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deals with condition for initiation of proceedings and the
period of limitation within which such proceedings can be
initiated.
13. A reading of Rule 43(b) makes it
abundantly clear that even after the conclusion of the
departmental inquiry, it is permissible for the Government
to withhold pension, etc. only when a finding is recorded
either in departmental inquiry or judicial proceedings that
the employee had committed grave misconduct in the
discharge of his duty while in his office. There is no
provision in the Rules for withholding of the
pension/gratuity when such departmental proceedings or
judicial proceedings are still pending.
12. From the perusal of the counter affidavit no
cogent reason for distinguishing reason has assigned that the
petitioner's case is different from those of other similarly
situated employees. It is also admitted that no opportunity of
hearing, was provided to the petitioner by the District
Programme Officer (Establishment) who failed to consider the
petitioner's case in the light of the cases of similarly situated
employees and the principles laid down in the cases of
Jitendra Kumar Srivastava (supra) and Constable Uma
Shankaran (supra) . In the above facts and circumstances the
co-ordinate bench directed to permit the petitioner and
similarly situated persons continue in service till the date of his
retirement.
13. In view of the facts and circumstances, the
unilateral decision taken by the District Programme Officer
(Establishment), Nalanda, without considering the spirit of the

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order dated 20.02.2019 passed in CWJC No. 14138 of 2019
can be said to be without jurisdiction and cannot be said to be
in accordance with law. Accordingly, the impugned order
contained in Memo No. 5701 dated 15.09.2026 is hereby
quashed and set aside.
14. Normally this Court would have remitted the
matter but considering the manner in which the District
Programme Officer (Establishment), Nalanda, has dealt with
the petitioner's claim, this Court is not inclined to remit the
matter back to the said authority for fresh consideration.
15.The Additional Chief Secretary, Education
Department, Government of Bihar, is directed to call for
service particulars of petitioner from the District Education
Officer and District Programme Officer (Establishment) within
one week and examine the decisions taken by the Department
in respect of other similarly situated employees, with whom
petitioner is claiming parity by giving specific information in
paragraph no. 7 of writ petition. Upon such examination, the
Additional Chief Secretary shall take a conscious and equitable
and decision in respect of petitioner's claim for payment of
salary for the period during which he remained under
suspension, strictly in accordance with law, well within a pe-

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riod of six weeks from the date of passing of this order by
ensuring to obtain his service particulars within one week.
16. In the meantime, the respondents shall also en-
sure payment of all admissible retiral dues to the petitioner, to
which he is otherwise also entitled for in accordance with law.
17. The present writ petition accordingly stands dis-
posed of.

(Purnendu Singh, J)
chn/-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 05.11.2026
Transmission Date NA