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(WPS No.9593/2019)

CGHC010388172019 2026:CGHC:37323

AFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

WPS No. 9593 of 2019

Order reserved on: 14/08/2026

Order delivered on: 20/08/2026

Order (Full) uploaded on: 20/08/2026

Dr. Shyam Raj Singh, S/o Late Jagdesh Singh, Aged about 68 years,

(i). R/o H.No.96, Arihant Nagar, Sarona, Tatibandh, Raipur, Raipur

Dist., Chhattisgarh State, PIN 492013. (ii) Saraswati Shishu Mandir

Road, Gali No.2, Krishna Nagar, Sangram Colony, Satna, Satna Dist.,

MP State, PIN 485001.

... Petitioner

versus

1.State of Chhattisgarh, through Principal Secretary, Home

Department, Govt. of CG, Mahanadi Bhavan, Atal Nagar, Raipur,

Raipur Dist., Chhattisgarh State.

2.Director General (Jail & Reformation Services), Office of Director

General (Jails), Headquarters, Raipur Dist., Chhattisgarh State

3.Superintendent, Central Jails, Raipur, Raipur Dist., Chhattisgarh

State

... Respondents

For Petitioner :Dr. Veena Nair, Advocate.

For Respondents :Mr. Sharad Mishra, Panel Lawyer.

Single Bench: -

Hon'ble Shri Justice Sanjay K. Agrawal

C.A.V. Order

For the sake of exposition, this Order is divided in following parts:-

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(WPS No.9593/2019)

S.No. Particulars Page Nos.

1.Question of Law Involved 2

2.Challenge in the Writ Petition 2

3.Quintessential Facts 3

4.Return of the State Government 4

5.Rejoinder on behalf of the Writ Petitioner 4

6.Submission on behalf of the Writ Petitioner 5

7.Submission on behalf of the Respondents 6

8.Proceeding before the State Government 6

9.Relevant Rule 10

10.Power of Relaxation under Rule 79 15

11.Discussion and Analysis 19

12.Conclusion 22

13.Relief and Cost 22

Question of Law Involved

1.The short but important question of law that is involved in the writ

petition is, whether the State Government is justified in instituting

departmental proceeding against the petitioner of an event which

took place more than four years before the institution of such

proceeding in violation of Rule 9(2)(b)(ii) of the Chhattisgarh Civil

Services (Pension) Rules, 1976 (for short, ‘the Rules of 1976’)

allegedly relaxing the aforesaid Rule in exercise of power conferred

under Rule 79 of the Rules of 1976?

Challenge in the Writ Petition

2.The petitioner herein takes exception to the order dated 18-10-2019

(Annexure P-1) passed by the State Government imposing a penalty

under Rule 9(5) of the Rules of 1976 directing recovery of ₹

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(WPS No.9593/2019)

1,09,975/- finding that the petitioner is guilty of misconduct under

Rule 3-A of the Chhattisgarh Civil Services (Conduct) Rules, 1965.

Quintessential Facts

3.The petitioner was working on the post of Superintendent, Central

Jail, Raipur and eventually, he was superannuated on the said post

with effect from 31-8-2010 and thereafter, it is the case of the

petitioner that he has been granted and paid all retiral dues including

pension and gratuity. On 29-5-2013, charge-sheet was issued to the

petitioner alleging that he did not accept the lowest tender and

caused loss of revenue to the Government to the extent of ₹

1,09,975/- and thereafter, by order dated 3-11-2014, instituted

departmental enquiry and further, in exercise of power under Rule

79 of the Rules of 1976, relaxed the period of four years as prescribed

under Rule 9(2)(b)(ii) of the Rules of 1976 in respect of an event

which took place more than four years before such institution.

Thereafter, by the impugned order dated 18-10-2019, in exercise of

power under Rule 9(5) of the Rules of 1976, the State Government

directed recovery of ₹ 1,09,975/- against the petitioner leading to

filing of this writ petition.

4.It is the case of the petitioner that the period prescribed in Rule 9(2)

(b)(ii) of the Rules of 1976, which prescribes the time limit that

departmental enquiry shall not be instituted in respect of an event

which took place more than four years before such institution, is

imperative and in exercise of power under Rule 79 of the Rules of

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(WPS No.9593/2019)

1976, such rule could not have been relaxed, as the prescription of

time limit of four years in respect of an event which took place more

than four years, is mandatory and the time barred action cannot be

revived by relaxing the rule, more particularly, the Administrative

Department has not passed any order relaxing the rule by recording

reasons in writing, only the Finance Department has given its

concurrence, which is not the compliance of Rule 79 of the Rules of

1976, therefore, the order impugned dated 18-10-2019 suffers from

jurisdictional error and it is liable to be quashed.

Return of the State Government

5.The State/respondents have filed return justifying its action stating

inter alia that the period of four years as prescribed under Rule 9(2)

(b)(ii) of the Rules of 1976 has been relaxed in exercise of power

under Rule 79 of the Rules of 1976 by order Annexure R-8 dated 3-

11-2014, which is in accordance with law and the competent

authority had also granted permission under Rule 9(2)(b) to institute

and hold departmental enquiry against the petitioner. Thus, the rule

has been relaxed by virtue of Rule 79 of the Rules of 1976, as such,

the writ petition deserves to be dismissed.

Rejoinder on behalf of the Petitioner

6.A short rejoinder has been filed on behalf of the petitioner stating

that exercise of power under Rule 79 of the Rules of 1976 is totally

unwarranted, it is not a valid exercise of power and it cannot be

exercised to take exemption from the rigors of the Pension Rules

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(WPS No.9593/2019)

which requires to make the payment of retiral dues like pension and

gratuity to a Government servant in the next month. Rule 79 of the

Rules of 1976 cannot be interpreted in favour of the respondents for

shielding them from their neglect or delay in discharge of their

statutory duties towards the retired employee. As such, the writ

petition deserves to be allowed.

Submission on behalf of the Writ Petitioner

7.Dr. Veena Nair, learned counsel appearing on behalf of the

petitioner, would make submissions as under: -

1.Rule 9(2)(b)(ii) of the Rules of 1976 is mandatory and the

departmental proceeding is barred by limitation, as action has

not been in accordance with the time prescribed in Rule 9(2)(b)

(ii). By relaxing Rule 79 of the Rules of 1976, such a period

cannot be extended and the alleged relaxation in exercise of

power under Rule 79 will be totally arbitrary and unbridled

exercise of power by the State Government.

2.Rule 79 of the Rules of 1976 has not been complied with, even

otherwise, no reasons have been recorded in exercise of Rule 79

except the concurrence of the Finance Department and the

period of limitation which the rule-making authority has

prescribed for initiating departmental proceeding conferring

power to the State Government in respect of an event which

took place more than four years before such institution, cannot

be extended in alleged exercise of the power of relaxation.

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(WPS No.9593/2019)

Such a relaxation in rule is totally unwarranted, unsustainable

and bad in law and liable to be set aside.

Submission on behalf of the Respondents

8.Mr. Sharad Mishra, learned State counsel appearing on behalf of the

State/respondents, would submit that the State Government has

rightly relaxed Rule 9(2)(b)(ii) of the Rules of 1976 in exercise of

power under Rule 79 of the said Rules and as such, the writ petition

deserves to be dismissed.

9.I have heard learned counsel for the parties and considered their

rival contentions made herein-above and also gone through the

record with utmost circumspection.

Proceeding before the State Government

10.In order to deal with the issue, it would be appropriate to notice the

proceeding that has taken place against the petitioner.

11.The petitioner stood superannuated from the post of Superintendent,

Central Jail, Raipur on 31-8-2010. Thereafter, on 22-1-2013, the

Council of Ministers in exercise of power conferred Rule 9(2)(b) of

the Rules of 1976, granted permission to institute departmental

proceeding against the petitioner, which states as under: -

eaf=ifj"kn~ vkns’k

¼dk;Zlwph esa lfEefyr fo"k;½

¼vk;Ve dzekad&71-3½

fnukad 22 tuojh] 2013

fo"k;% izdj.k dzekad&31@06 esa NRrhlx<+ yksd vk;ksx dh vuq’kalk vuqlkj MkW-

';kejkt flag] rRdkyhu v/kh{kd] dsUnzh; dkjkxkj x`g] jk;iqj ds fo:)

dk;Zokgh ckcr~A

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(WPS No.9593/2019)

fu.kZ;% fu.kZ; fy;k x;k fd MkW- ';kejkt flag] ¼lsokfuo`Rr½] rRdkyhu vf/k{kd]

dsUnzh; dkjkxkj x`g] jk;iqj ds fo:) NRrhslx<+ flfoy lsok ¼isa’ku½ fu;e&

1976 ds fu;e&9 ds varxZr vkjksi i=kfn tkjh djus ,oa foHkkxh; tkap

lafLFkr djus dh dk;Zokgh dh tk,”

d`i;k le;kof/k esa vuqlkafxd dkjZokbZ djsaA

lgh@&

¼lqfuy dqekj½

eq[; lfpo

12.Since the alleged misconduct as apparent from the impugned order

Annexure P-1 is of the years 2004-05 & 2005-06 and from the order

dated 22-1-2013, those were the events which took place more than

four years before such institution and institution of disciplinary

proceedings was apparently barred under Rule 9(2)(b)(ii) of the

Rules of 1976, the State Government placed the case before the

Finance/Administrative Department to relax Rule 9(2)(b) of the

Rules of 1976 in exercise of Rule 79 for instituting disciplinary

proceeding against the petitioner and accordingly, the concurrence of

the Finance Department, as provided under the proviso to Rule 79

was obtained, which states as under: -

“foRr foHkkx iz’kkldh; foHkkx ls izkIr izLrko ds laca/k esa ys[k gS fd isa’ku

fu;e 1976 ds fu;e&79 esa iznRr ’kfDr;ksa ds varxZr issa’ku fu;e&9 ¼2½ ¼ch½

ds f’kfFkyhdj.k gsrq foRr iz’kkldh; foHkkx }kjk bl 'krZ ds lkFk lgefr nh

tkrh gS fd iz’kkldh; foHkkx lgefr laca/kh vkns’k esa mu dkj.kksa dks

Li"V :i ls ys[kc) djsxk ftlds vk/kkj ij mDr lgefr U;k; laxr vkSj

lkE;iw.kZ gSA”

¼eku- eq[;ea=h th }kjk Vhi vuqeksfnr½

lgh@&

voj lfpo

NRrhlx<+ ’kklu

foRr foHkkx

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(WPS No.9593/2019)

13.But, however, there is nothing on record that as per Rule 79 of the

Rules of 1976, reasons have been recorded by the Administrative

Department granting consent and relaxing the rule under Rule 79,

except the concurrence by the Finance Department as noted herein-

above. Thereafter, on 29-5-2013, charge-sheet was issued to the

petitioner on the following charges: -

vkjksi %&

vkids }kjk o"kZ 2004&05 ,oa 2005&06 esa dsUnzh; tsy] jk;iqj esa

cafn;ksa ,oa m|ksxksa gsrq yxus okyh lkefxz;ksa ds dz; esa xaHkhj vfu;ferrk,a

cjrh xbZ gSA U;wure fufonk dks Lohdkj ugha fd;k x;k vkSj jktdh;

jktLo dh gkfu igqpkbZ xbZA dsoy lQsn dkxt ds dz; esa gh :i;s

1]09]975@& dh gkfu 'kkldh; jkf’k dh igqpkbZ xbZ gS] tksfd N0x0 flfoy

lsok ¼vkpj.k fu;e½ 1965 ds fu;e 3 dk mYy?ku gSA

vkius ,slk dj Lo;a dks vuq’kklukRed dk;Zokgh djus ds fy, nks"kh

Bgjk;k gSA

14.Thereafter, finally, by order dated 18-10-2019 (Annexure P-1), the

State of Chhattisgarh had passed the impugned order of punishment

upon the petitioner, which states as under: -

NRRkhlx<+ 'kklu

x`g ¼tsy½ foHkkx

%% ea=ky; %%

egkunh Hkou] uok jk;iqj] vVy uxj

&%% vkns’k %%&

uok jk;iqj] vVy uxj] fnukad 18@10@2019

dzekad ,Q 3& 13@rhu & tsy@2009 %% izeq[k yksdk;qDr] NRrhlx<+ yksd

vk;ksx] jk;iqj }kjk ikfjr vkns’k fnukad 13-09-2011] esa MkW- ';kejkt flag

rRdkyhu v/kh{kd] dsUnzh; tsy jk;iqj ds fo:) lQsn dkxt dz; esa :i;s

1]09]975@& dh 'kkldh; jkf’k dk {kfr igaqpkuk ik;k x;k gS ,oa Jh

';kejkt flag ds fo:) vuq’kklukRed foHkkxh; dk;Zokgh lafLFkr dh tkdj

vkjksi LFkkfir gksus ij ;Fkksfpr ’kkfLr vf/kjksfir dh tkus dh vuq’kalk dh xbZ

gSA

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2@NRRkhlx<+ yksd vk;ksx dk mDr vkns’k ftl dnkpj.k ds laca/k esa gS]

og dnkpj.k fnukad 11-07-2006 dks fd;k x;k FkkA MkW0 ';kejkt flag] tsy

v/kh{kd ds in ls fnukad 31-08-2010 dks lsokfuo`Rr gks pqds FksA

3@mDr fLFkfr esa ekuuh; yksdk;qDr dh vuq’kalk ds izpyu gsrq laHko

vuq’kklukRed dk;Zokgh ds laca/k esa vkns’kkuqlkj lkekU; iz’kklu foHkkx] fof/k

foHkkx dk vfHker izkIr djrs gq, vfHker vuqlkj foRr foHkkx dh lgefr

izkIr dj eaf=ifj"kn esa vuqeksnu izkIr fd;k x;kA

eaf=ifj"kn~ vkns’k fnukad 22 tuojh] 2013 esa fy;s x;s fu.kZ; vuqlkj

MkW- ';kejkt flag ¼lsokfuo`Rr½] rRdkyhu v/kh{kd] dsUnzh; dkjkxkj x`g]

jk;iqj ds fo:) NRrhlx<+ flfoy lsok ¼isa’ku½ fu;e&1976 ds fu;e&9 ds

varxZr vkjksi i=kfn tkjh djus ,oa foHkkxh; tkap lafLFkr djus dh dk;Zokgh

dh xbZA

4@vipkjh vf/kdkjh MkW0 ';kejkt flag] lsokfuo`Rr] tsy vf/k{kd dks

foHkkx ds Kkiu fnukad 29-05-2013 }kjk vkjksi i=kfn tkjh fd;k x;kA MkW0

flag }kjk vkjksi &i=kfn dk izfrokn mRrj izLrqr u djrs gq, vkjksiksa ls

lacaf/kr lqlaxr vfHkys[kksa dh ekax dh xbZA tsy eq[;ky; }kjk muds pkgs

vuqlkj mUgsa nks ckj vfHkys[k Hkh miyC/k djk;s x;s fdarq muds }kjk izdj.k esa

foyac fd;k x;kA MkW0 flag }kjk vkjksi&i= dk izfrokn mRrj izLrqr u djus

ds dkj.k foRr foHkkx dh lgefr vuqlkj NRrhlx<+ flfoy ¼ias’ku½ fu;e]

1976 ds fu;e&9¼2½ ¼ch½ ¼ii½ esa mYysf[kr 04 o"kZ dh le;& lhek ds ca/ku

dks f’kfFky djrs gq, mDr isa’ku fu;e rFkk N-x- flfoy lsok ¼oxhZdj.k]

fu;a=.k rFkk vihy½ fu;e] 1966 ds fu;e 14 ds varxZr MkW- ';kejkt flag]

tsy v/kh{kd ¼lsokfuo`Rr½ ds fo:) foHkkx ds vkns’k fnukad 05-11-2014 }kjk

foHkkxh; tkap laLFkfir djrs gq, Jh ,l-,l- frXxk] v/kh{kd] dsUnzh; tsy]

fcykliqj dks tkapdrkZ vf/kdkjh ,oa Jh ,u-ds- 'kekZ] lgk;d tsy v/kh{kd]

dsUnzh; tsy] fcykliqj dks izLrqrdrkZ vf/kdkjh fu;qDr fd;k x;kA

5@MkW0 ';kejkt flag ¼lsokfuo`Rr½ ds fo:) dsUnzh; tsy jk;iqj esa tsy

v/kh{kd ds :i esa inLFkh vof/k ds nkSjku dz; dh xbZ lkefxz;ksa esa

vfu;ferrk cjrus ds izdj.k esa fuEufyf[kr vkjksi ij foHkkxh; tkap lafLFkr

dh xbZ%&

1-vkids }kjk o"kZ 2004&2005 ,oa 2005 &06 esa dsUnzh; tsy

jk;iqj esa cafn;ksa ,oa m|ksxksa gsrq yxus okyh lkefxz;ksa ds dz; esa xaHkhj

vfu;ferrk cjrh xbZ U;wure fufonk dks Lohdkj ugha fd;k x;k vkSj

jktdh; jktLo dh gkfu igqapkbZ xbZA dsoy lQsn dkxt ds dz; esa

gh :i;s 1]09]975-00 gkfu 'kkldh; jkf’k dh igqapkbZ xbZ gSA tks

NRRkhx<+ flfoy lsok ¼vkpj.k fu;e½ 1965 ds fu;e 3 dk mYya?ku gS]

vkius ,slk dj Lo;a dks vuq’kklukRed dk;Zokgh djus ds fy, nks"kh

Bgjk;k gSA

6@tkapdrkZ vf/kdkjh] }kjk fu;ekuqlkj foHkkxh; tkap lEiUu dj tkap

izfrosnu esa lsokfuo`Rr tsy v/kh{kd] MkW0 ';kejkt flag ij yxs vkjksi dzekad

01 izekf.kr ik;k x;kA

7@tkapdrkZ vf/kdkjh }kjk izLrqr tkap izfrosnu ij vipkjh vf/kdkjh dk

vH;kosnu izkIr fd;k x;kA muds }kjk izLrqr vH;kosnu ij egkfuns’kd] tsy

dk fcUnqokj vfHker@Vhi izkIr dh xbZ gSA egkfuns’kd] tsy }kjk mipkjh

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vf/kdkjh MkW0 ';kejkt flag }kjk izLrqr vH;kosnu esa mYysf[kr fcUnq

xzkg~; ;ksX; ugha gksus dk mYys[k djrs gq, vekU; fd;k tkuk ys[k fd;k

x;kA

8@izdj.k ds tkapdrkZ vf/kdkjh }kjk izLrqr tkap izfrosnu ,oa vipkjh

vf/kdkjh ds vH;kosnu dk egkfuns’kd] tsy ls izkIr vfHker ij fopkjksijkar

vekU; fd;k x;kA vipkjh vf/kdkjh }kjk gkfu igaqpk;s x;s 'kkldh; jkf’k

1]09]975-00@& dk lek;kstu lsokfuo`Rr vf/kdkjh] MkW] ';kejkt flag

rRdkyhu tsy v/kh{kd] dsUnzh; tsy jk;iqj ls fd;s tkus dk vufUre

iz’kkldh; fu.kZ; fy;k tkdj NRrhlx<+ yksd lsok vk;ksx dh lgefr izkIr

dh xbZA

9@vr% jkT; 'kklu] ,rn~}kjk] MkW0 ';kejkt flag] lsokfuo`Rr tsy

v/kh{kd ¼rRdkyhu tsy v/kh{kd] dsUnzh; tsy] jk;iqj½ dk d`R; NRrhlx<+

flfoy lsok ¼vkpj.k½ fu;e 1965 ds fu;e&3 ¼d½ ds varxZr dnkpj.k dh

Js.kh dk vkjksi izekf.kr gksus ls muds }kjk 'kklu dks igaqpkbZ xbZ gkfu :i;s

1]09]975@& ¼,d yk[k ukS gtkj ukS lkS ipgRrj :i;s ek=½ dh olwyh

NRrhlx<+ flfoy ¼isa’ku½ fu;e] 1976 ds fu;e&9 ¼5½ ds izko/kkuksa ds rgr

MkW0 ';kejkt flag] lsokfuo`Rr tsy v/kh{kd dk izkIr ifjyfC/k;ksa ls fd, tkus

dh 'kkfLr vf/kjksfir djrk gSA

NRrhlx<+ ds jkT;iky ds uke ls

rFkk vkns’kuqlkj

lgh@&

¼tud dqekj½

voj lfpo

NRrhlx<+ 'kklu] x`g ¼tsy½ foHkkx

15.The aforesaid order is sought to be challenged by way of the present

writ petition.

Relevant Rule

16.In order to consider the challenge to the aforesaid order dated 18-10-

2019, it would be appropriate to notice Rule 9(2)(b)(i) & (ii) which

state as under: -

“9. Right of Governor to withhold or withdraw

pension.—(1) xxxxxxxxx

(2) (a) xxxxxxxxx

(b) The departmental proceedings, if not instituted

while the Government servant was in service whether before

his retirement or during his re-employment :—

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(i) shall not be instituted save with the sanction of the

Governor;

(ii) shall not be in respect of any event which took place

more than four years before such institution; and

xxxxxxxxx”

17.A careful perusal of the provision contained in Section 9(2)(b)(i) of

the Rules of 1976 would show that if the departmental proceedings

are not instituted against the Government servant by the disciplinary

authority while he was in service, then it shall not be instituted save

with the sanction of the Governor, and sanction of the Governor or/

his delegate Council of Ministers/Chief Minister as may be

prescribed by the Allocation of Business Rules, is required to be

taken. Similarly, Rule 9(2)(b)(ii) of the Rules of 1976 provides that

such sanction shall not be in respect of an event which took place

more than four years before the institution of such disciplinary

proceedings.

18.The usage of the word “shall” in the above-stated Rules 9(2)(b)(i) &

(ii) of the Rules of 1976 would show that requirement of sanction

from the Government prior to institution of departmental enquiry

and which shall not be in respect of an event which took place more

than four years before the institution of such proceeding, is

mandatory. Such mandatory safeguard is intended to prevent

institution of unwarranted proceedings against the superannuated

employees. {See Kadirkhan Ahmedkhan Pathan v.

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Maharashtra State Warehousing Corporation and others

1

(paragraph 29).}

19.The Supreme Court in Kadirkhan Ahmedkhan Pathan (supra),

while dealing with Rule 27(2)(b)(ii) of the Maharashtra Civil Services

(Pension) Rules, 1982, which is the pari materia provision to Rule

9(2)(b)(ii) of the Rules of 1976, has held that this provision is

benevolent in nature, as it regulates the State’s discretion to institute

or continue departmental proceedings, and observed as under: -

“20.On appreciation of Rule 27(b), it can safely be

observed that in cases where the departmental

proceedings were instituted post-retirement without

obtaining sanction of the government till culmination as

specified in the rules and simultaneously if the cause of

action of such proceedings arose prior to four years of

date of institution, such proceedings could not have been

instituted or continued. Therefore, the provision is

benevolent in nature, as it regulates the State's discretion

to institute or continue departmental proceedings.”

20.Rules 9(2)(b)(i) & 9(2)(b)(ii) of the Rules of 1976 are pari materia to

Rules 9(2)(b)(i) & 9(2)(b)(ii) of the Central Civil Services (Pension)

Rules, 1972. The provisions contained in Rules 9(2)(b)(i) & 9(2)(b)

(ii) of the Central Civil Services (Pension) Rules, 1972, which are pari

materia to Rules 9(2)(b)(i) & 9(2)(b)(ii) of the Rules of 1976 came to

be considered by their Lordships of the Supreme Court in the matter

of Brajendra Singh Yambem v. Union of India and another

2

in which their Lordships posed the following question for

1(2026) 3 SCC 252

2(2016) 9 SCC 20

Page 13 of 22

(WPS No.9593/2019)

consideration with respect to Rule 9(2)(b)(ii) of the CCS (Pension)

Rules, 1972:-

“31.1. (i) Whether the impugned judgment and order passed

by the Division Bench of the High Court correctly appreciates

the scope of Rule 9(2)(b)(ii) of the CCS (Pension) Rules, 1972

in light of the fact that the disciplinary proceedings were

initiated more than four years after the alleged incidents?”

Their Lordships considered the issue and held that the period of

limitation is prescribed by Rule 9(2)(b)(ii) for initiating

departmental enquiry after retirement and if the action is barred by

limitation, departmental proceedings could not have been initiated in

violation of that Rule, and observed as under: -

“40.The Division Bench of the High Court failed to

appreciate the fact that liberty had been granted by the High

Court vide its judgment and order dated 7-11-2006 in WA (C)

No. 45 of 2006 to the disciplinary authority to take

disciplinary action against the appellant. Thus, there was no

need for the respondent disciplinary authority to withdraw

the memorandum of charges dated 14-5-1998 for the purpose

of initiating disciplinary proceedings afresh against the

appellant on the same charges by obtaining an order of

sanction from the President of India as required under Rule

9(2)(b)(i) of the CCS (Pension) Rules, 1972. The Division

Bench of the High Court in its judgment and order dated 5-8-

2013

3

has completely ignored this important legal aspect of

the matter, that the prior sanction accorded by the President

under the abovesaid Rules was in fact, barred by limitation.

Thus, it has committed serious error in law in arriving at the

conclusion that the respondent disciplinary authority had

obtained due sanction from the President of India to conduct

the departmental proceedings against the appellant for the

same charges, which action was barred by limitation as

provided under Rule 9(2)(b)(ii) of the CCS (Pension) Rules,

1972. Therefore, the impugned judgment and order passed by

the Division Bench of the High Court cannot be allowed to

sustain in law.”

3Union of India v. B.S. Yambem, 2013 SCC OnLine Mani 114

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21.Similarly, in the matter of State of U.P. and another v. Shri

Krishna Pandey

4

, the Supreme Court has held that time-limit has

been prescribed for initiating departmental enquiry after retirement

and when the departmental enquiry for embezzlement was initiated

more than four years after the delinquent was allowed to retire on

superannuation, their Lordships of the Supreme Court held that such

departmental enquiry is incompetent, as the State had disabled itself

by their deliberate omissions to take appropriate action against the

respondent (therein) and allowed the officer to escape from the

provisions of Regulation 351-A of the Civil Services Regulations. It

has been observed by their Lordships in paragraph 6 of the report as

under: -

“6.It would thus be seen that proceedings are required to

be instituted against a delinquent officer before retirement.

There is no specific provision allowing the officer to continue

in service nor any order passed to allow him to continue on

re-employment till the enquiry is completed, without allowing

him to retire from service. Equally, there is no provision that

the proceedings be initiated as a disciplinary measure and the

action initiated earlier would remain unabated after

retirement. If Regulation 351-A is to be operative in respect

of pending proceedings, by necessary implication, prior

sanction of the Governor to continue the proceedings against

him is required. On the other hand, the Regulation also

would indicate that if the officer caused pecuniary loss or

committed embezzlement etc. due to misconduct or

negligence or dereliction of duty, then proceedings should

also be instituted after retirement against the officer as

expeditiously as possible. But the events of misconduct etc.

which may have resulted in the loss to the Government or

embezzlement, i.e., the cause for the institution of

proceedings, should not have taken place more than four

years before the date of institution of proceedings. In other

words, the departmental proceedings must be instituted

4(1996) 9 SCC 395

Page 15 of 22

(WPS No.9593/2019)

before lapse of four years from the date on which the event of

misconduct etc. had taken place. Admittedly, in this case the

officer had retired on 31-3-1987 and the proceedings were

initiated on 21-4-1991. Obviously, the event of embezzlement

which caused pecuniary loss to the State took place prior to

four years from the date of his retirement. Under these

circumstances, the State had disabled itself by their deliberate

omissions to take appropriate action against the respondent

and allowed the officer to escape from the provisions of

Regulation 351-A of the Regulations. This order does not

preclude proceeding with the investigation into the offence

and taking action thereon.”

22.As such, four years is the time-limit/period of limitation prescribed

by the rule-making authority by way of Rule 9(2)(b)(ii) of the Rules

of 1976 in respect of an event which took place more than four years

before the institution of departmental proceedings and such a

provision is a mandatory provision well designed to protect the

superannuated Government servants from unnecessary harassment

after their superannuation.

Power of Relaxation under Rule 79

23.Now, this would bring me to the next question of power of relaxation.

It is the case of State Government that four year’s period of limitation

prescribed in Rule 9(2)(b)(ii) of the Rules of 1976 has been relaxed in

exercise of the power conferred under Rule 79 of the Rules of 1976.

Rule 79 of the Rules of 1976 which provides power to relax, states as

under: -

“79. Power to relax.—Where any department of the

Government is satisfied that the operation of any of these

rules causes undue hardship in any particular case, the State

Government may by order for reasons to be recorded in

writing, dispense with or relax the requirements of that rule

to such extent and subject to such exceptions and conditions

Page 16 of 22

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as it may consider necessary for dealing with the case in a just

and equitable manner :

Provided that no such order shall be made except with

the concurrence of the Finance Department.”

24.A careful perusal of the above-stated Rule would show that though

the power to relax rule is conferred to the State Government, on

satisfaction of any Department of the Government, that operation of

any rule is causing hardship to any particular case, it is necessarily

required to be exercised in a just and equitable manner and to

mitigate hardship, if any, caused in a particular case. However, such

a power of relaxation cannot be exercised to revive the time barred

action and mandatory provision cannot be relaxed. The power of

relaxation must be construed strictly and cannot be used as blanket

authority to disregard the binding Rule.

25.The pari materia provision of power to relax except the proviso

contained in Rule 22 of the Haryana Service of Engineers Class I

PWD (Public Health Branch) Rules, 1961 came to be considered by

the Supreme Court in the matter of J.C. Yadav and others v.

State of Haryana and others

5

and highlighting the object and

purpose of conferring the power to relax, their Lordships of the

Supreme Court have held that the object and purpose of conferring

this power on the government is to mitigate undue hardship in any

particular case, and to deal with a case in a just and equitable

manner. It has been observed by their Lordships in paragraph 6 of

the report as under: -

5(1990) 2 SCC 189

Page 17 of 22

(WPS No.9593/2019)

“6.The rule confers power on the government to dispense

with or to relax the requirement of any of the rules to the

extent and with such conditions as it may consider necessary

for dealing with the case in a just and equitable manner. The

object and purpose of conferring this power on the

government is to mitigate undue hardship in any particular

case, and to deal with a case in a just and equitable manner.

If the rules cause undue hardship or rules operate in an

inequitable manner in that event the State Government has

power to dispense with or to relax the requirement of rules.

The rule does not restrict the exercise of power to individual

cases. The government may in certain circumstances relax

the requirement of rules to meet a particular situation. The

expression “in any particular case” does not mean that the

relaxation should be confined only to an individual case. One

of the meanings of the expression “particular” means

“peculiar or pertaining to a specified person — thing — time

or place — not common or general”. The meaning of the word

particular in relation to law means separate or special, limited

or specific. The word ‘case’ in ordinary usage means ‘event’,

‘happening’, ‘situation’, ‘circumstances’. The expression ‘case’

in legal sense means ‘a case’, ‘suit’ or ‘proceeding in court or

Tribunal’. Having regard to these meanings the expression ‘in

any particular case’ would mean: in a particular or pertaining

to an event, situation or circumstances. Rule 22 postulates

relaxation of rules to meet a particular event or situation, if

the operation of the rules causes hardship. The relaxation of

the rules may be to the extent the State Government may

consider necessary for dealing with a particular situation in a

just and equitable manner. The scope of rule is wide enough

to confer power on the State Government to relax the

requirement of rules in respect of an individual or class of

individuals to the extent it may consider necessary for dealing

with the case in a just and equitable manner. The power of

relaxation is generally contained in the Rules with a view to

mitigate undue hardship or to meet a particular situation.

Many a time strict application of service rules create a

situation where a particular individual or a set of individuals

may suffer undue hardship and further there may be a

situation where requisite qualified persons may not be

available for appointment to the service. In such a situation

the government has power to relax requirement of rules. The

State Government may in exercise of its powers issue a

general order relaxing any particular rule with a view to avail

the services of requisite officers. The relaxation even if

Page 18 of 22

(WPS No.9593/2019)

granted in a general manner would ensure to the benefit of

individual officers.”

26.Similarly, Justice V.R. Krishna Iyer, in the matter of Shri Amrik

Singh and others v. Union of India and others

6

has observed

that there must be undue hardship and, further the relaxation

must promote the dealing with the case “in a just and equitable

manner”.

27.As such, the object of the power of relaxation is obviously to

neutralise an injustice as a result of operation of any rule. It has been

described to be the reserve power to deal with unforeseen situations

or circumstances and it is to be exercised in the public interest with a

view to maintain integrity and efficiency in service. (See R.R.

Verma and others v. Union of India and others

7

.)

28.Power to relax rules must be made judiciously keeping in mind the

object and purpose. The power is conferred upon the Government to

meet any emergent situation where injustice might have been caused

to any individual employee or class of employees or where the

working of the rule might have become impossible (see Ashok K.

Uppal v. State of J&K

8

). The power of relaxation must also be

expressly conferred (see Sanjay Kumar Manjul v. Chairman,

UPSC

9

).

6(1980) 3 SCC 393

7(1980) 3 SCC 402

8(1998) 4 SCC 179

9(2006) 8 SCC 42

Page 19 of 22

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29.In the matter of Sandeep Kumar Sharma v. State of Punjab

10

,

their Lordships of the Supreme Court have however cautioned that

arbitrary exercise of such power must be guarded against and that

the rule of relaxation must get a pragmatic construction so as to

achieve effective implementation of good policy.

30.In the matter of State of Punjab v. Dr. Rajeev Sarwal

11

, it has

been observed by their Lordships of the Supreme Court that a power

of relaxation cannot be read into a rule which is explicit as to a

particular matter, e.g. where maximum period of study leave

prescribed is 24 months, an employee cannot ask for relaxation to

exceed that period.

31.Similarly, in the matter of Suraj Prakash Gupta v. State of

J&K

12

, the Supreme Court has held that the exercise of the power of

relaxation would be considered to be bad when the reasons for such

relaxation are found to be hopelessly insufficient.

Discussion and Analysis

32.It is a well-established principle of law that when a statute prescribes

a specific manner for doing a particular act, that act must be

performed in that designated manner or not at all {see Brajendra

Singh Yambem (supra)}. While Rule 79 of the Rules of 1976 vests

the State Government with the power to relax rules in cases where its

application causes "undue hardship", thereby enabling the matter to

be dealt with “in a just and equitable manner", this general power

10(1997) 10 SCC 298 at 304

11(1999) 9 SCC 240

12(2000) 7 SCC 561

Page 20 of 22

(WPS No.9593/2019)

cannot be interpreted so broadly as to override or negate specific

substantive provisions, such as periods of limitation, explicitly

embedded in the governing pension rules.

33.Rule 79 of the Rules of 1976 provides a mechanism for the relaxation

of rules, not for their rewriting, which remains exclusively within the

domain of the legislature. In the present case, no legally tenable

grounds demonstrating undue hardship have been placed on record,

and the mere concurrence of the Finance Department does not

suffice to meet this mandatory threshold, as the power to relax does

not translate into an unfettered power to dispense with the rules

altogether.

34.Consequently, the State Government could not lawfully invoke Rule

79 of the Rules of 1976 to bypass the mandatory statutory protection

afforded under Rule 9(2)(b)(ii) of the Rules of 1976, which explicitly

bars the institution of departmental proceedings against a retired

government servant in respect of any event that took place more than

four years prior to such institution. Initiating disciplinary

proceedings after a staggering delay of 7-8 years from the alleged

date of misconduct, under the guise of rule relaxation, constitutes a

direct violation of statutory safeguards, rendering such an

administrative action fundamentally unsustainable in the eyes of the

law. The State must administer the law equitably and without "an

evil eye or an unequal hand", because permitting the unbridled

exercise of discretionary powers of this magnitude would convert a

Page 21 of 22

(WPS No.9593/2019)

tool intended for equity into an engine of oppression, paving the way

for systemic abuse against public servants.

35.Accordingly, it is held that in exercise of the power conferred under

Rule 79 of the Rules of 1976, the power of relaxation could not have

been exercised by the Government to rigor out from the mandate

contained in Rule 9(2)(b)(ii) of the Rules of 1976 which mandatorily

prescribes that such sanction shall not be in respect of an event

which took place more than four years before the institution of

departmental proceedings. In the instant case, the alleged event has

taken place during the years 2004-05 & 2005-06 and charge-sheet

has been issued to the petitioner on 29-5-2013, which is delayed by

more than 7-8 years before the institution of such proceedings. As

such, the action as held by their Lordships of the Supreme Court in

Brajendra Singh Yambem (supra) is barred by limitation and

thus, departmental proceedings could not have been initiated by the

State Government, particularly, when the Administrative

Department has not recorded any reasons for grant of relaxation as

required by Rule 79 of the Rules of 1976 and only the Finance

Department has made concurrence required by the proviso to Rule

79, leaving it for the Administrative Department to accord reasons,

which were not recorded at all.

Page 22 of 22

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Conclusion

36.The general power to relax rules under Rule 79 of the Rules of 1976

cannot be invoked to bypass or dilute an explicit statutory provision.

Rule 9(2)(b)(ii) of the Rules of 1976 sets an absolute bar against

initiating departmental proceedings against a retired Government

servant in respect of an event occurring more than four years prior to

such institution. While Rule 79 provides administrative flexibility to

deal with a case in a just and equitable manner to alleviate undue

hardship, this discretionary power cannot be extended to override an

express, mandatory and statutory restriction. To permit relaxation

in teeth of a mandatory and statutory prohibition would be to rewrite

the statutory scheme under the garb of administrative discretion.

Consequently, any relaxation of the limitation prescribed under Rule

9(2)(b)(ii) by taking recourse to Rule 79 is legally impermissible and

unsustainable.

Relief and Cost

37.Consequently, the impugned order dated 18-10-2019 (Annexure P-1)

is hereby quashed. The writ petition is allowed to the extent

indicated herein-above with no order as to costs.

Sd/-

(Sanjay K. Agrawal)

Judge

Soma