Rattani Koul vs D/o Power Development Ut Of J&k on 31 December 2024

O R D E R

Per:- Sanjeev Gupta, Judicial Member

Mr. Raj Nath Koul, who was working as Private Secretary in Power Development Department, Jammu had filed SWP No. 1736 of 2009 before the Hon’ble High Court of Jammu & Kashmir praying for the following reliefs:- “A/ Writ of certiorari quashing the Order No. PNR-I/A/98- 99/304977/7040-15 dated NIL as contained in Annexure: A which has reduced the pay scale of the petitioner from 9500 to 9250 on the date of retirement by referring the wrong fixation of pay on 01-04-1987. B/ Writ of certiorari quashing the order which has effected the recovery of Rs. 18,886/- from the gratuity of the petitioner. C/ Writ of mandamus commanding on respondents to fix the pay of the petitioner as per the statement of accounts as contained in Annexure: D which is perfectly made in accordance with SRO 91 Rule 9(2) so that the respondents are directed to fix the pay of the petitioner as 9500 on the date of the retirement and also pay the recovered amount of Rs. 18,886/- alongwith interest @12%. D/ Writ of mandamus commanding on respondents to release all retrial benefits in accordance with the fixation of pay of petitioner as 9500 on the date of retirement with all consequential benefits. E/ Writ of mandamus commanding on respondents to adhere the Order No. A/06 (78)-904 dated 24-09-1998 in letter and spirit so that the petitioner or any other employee shall not be put to unnecessary harassment in future also being mandatory in nature. F/ Any other order which this Hon’ble Court may deem fit and proper in the circumstances of the case may also be passed in favour of the petitioner against the respondents.”

2. After the death of the Raj Nath Koul, his legal heirs namely Rattani Koul (Widow), Naveen Koul (son) and Roshni Dar (Daughter)

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filed CMP No. 385 of 2012 for substitution which was allowed on 13.12.2012.

3. After the reorganization of State of Jammu and Kashmir into Union Territory of Jammu & Kashmir and Ladakh and in view of the Notification No. G.S.R. 267 (E) dated 29.04.2020 read with notification No. G.S.R. 317 (E) dated 28.05.2020 issued by the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training), the jurisdiction to adjudicate upon the lis regarding service disputes of the employees of UT of J&K and Ladakh was conferred upon this Tribunal and while considering the said fact, the record of SWP No. 1736 of 2009 was ordered to be transferred by the Hon’ble High Court to this Tribunal on 17.03.2021 and renumbered as Transferred Application No. 5400 of 2021.

4. Facts, as narrated in the instant T.A. in nutshell are that the deceased-Raj Nath Koul was initially appointed as Private Secretary in Power Development Commissioner, Jammu. The deceased after attaining the age of superannuation retired on 31.07.1998 and before his retirement, he was getting Rs. 9500/- as salary. However, when his pension case was submitted for final settlement, Respondent No. 3 raised unnecessary objections regarding the wrong fixation of deceased salary on 01.04.1987 and in view of said objections, Respondents No. 1 and 2 reduced the payscale of the deceased from Rs. 2130 to Rs. 2070 as on 01.04.1987, on the ground that D.A. has been wrongly calculated at Rs. 226.90/- instead of Rs. 177.10/-. The net result of this reduction of pay scale w.e.f. 01.04.1987 was that the

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salary of the deceased got reduced from Rs. 9500 to Rs. 9250 vide Order No. PNR-I/A/98-99/304977/7040-15 dated NIL, which also affected the pensionary benefits as well as other retrial benefits. Besides, the aforesaid reduction in salary, an amount of Rs. 18,886/- was also deducted from the gratuity of the deceased towards the recovery on account of excess pay.

5. Respondents No. 1 & 2 have filed counter affidavit wherein it has been stated that the deceased retired from service on 31.07.1998. Accordingly, the pension case of the deceased was prepared and forwarded to the Office of Accountant General, Jammu for final settlement, however, Respondent No. 3 raised some observations with regard to wrong fixation of pay in the service book of the deceased under SRO 370 of 1987 effective from 01.04.1987 and returned the case of the deceased to the then Development Commissioner, Power Office (Accounts Officer) for necessary clarifications. Thereafter, a due drawn statement was prepared and submitted to Accountant General wherein recovery of Rs. 18,886/- from the DCRG of the deceased was proposed. Subsequently, the Respondent No. 3 finalized the pension case of the deceased after effecting recovery of Rs. 18,886/- in compliance with Rule 17.4 of J&K Financial Code Vol.I

6. In the counter affidavit filed by Respondents No. 3-Accountant General, Jammu it has been stated that upon verification of the pension case of the deceased, it was observed that his pay was not fixed correctly in his service book under SRO 370 of 1987 w.e.f.

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01.04.1987. Accordingly, his case was referred to the pension sanctioning authority and in their reply, the pension sanctioning authority furnished a due and drawn statement and asked for recovery of Rs. 18,886/- from the DCRG of the deceased. Thereafter, the pension case of the deceased was finalized after effecting recovery of Rs. 18,886/- in compliance with Rule 17.4 of J&K Financial Code Vol.I.

7. It has been contended by Mr. P N Bhat, learned counsel for the applicants that the pension of the deceased was required to be fixed on the basis of average emoluments drawn by the deceased for the last ten completed months before his superannuation. It has been further submitted that the impugned communication is violative of statutory instructions attached with Regulation 242 of J&K CSR, which provides that no correction in the emoluments being drawn by a Government employee, at the time of retirement can be made which would exceed 24 months preceding the date of retirement, whereas, the impugned communication is seeking to correct average emoluments of the deceased beyond 24 months from the date preceding his retirement.

8. On the other hand, Mr. Akshay Sadotra, learned counsel appearing on behalf of Respondent No. 3 vehemently opposed the contention raised by learned counsel for the applicants and submitted that the recovery of an amount disallowed in audit or otherwise found to have been overpaid to a Government Servant should not be waived,

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merely on the ground that the amount was not drawn himself by the official or it was drawn in good faith. The liability of a person receiving payment in excess of the amount due, remains to pay the same as no person can be allowed to retain the benefit arising out of a mistaken belief. Every overpayment to a Government Employee, as per learned counsel, is and must be regarded as debt owed to the public and action should be taken to recover it with dispatch. This is as per Rule 17.4 of J&K Financial Code Vol-I and other instructions issued by the State Finance Department from time to time. Therefore, Article 242 of J&K, CSR, Vol-I cannot be read in isolation against the safety of public exchequer.

9. We have heard the learned counsels for the parties and carefully perused the records.

10. The question for consideration in the instant T.A. is as to whether it is permissible to re-examine the fixation of pay of the deceased, which was made way back in the year 1987.

11. As per the applicants, the Regulation 242 of J&K CSR precludes the respondents from checking the veracity of pay exceeding twenty four months preceding the date of retirement. However, according to respondents, pay of the deceased was wrongly fixed and the excess amount paid to the deceased being public money, it is the duty of the respondents to recover the same from the deceased.

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12. At this juncture, it would be apt to refer to Rule 242 of J&K CSR, which is as under:- “``. The term “Average emoluments” in respect of Government servants who retire on or after 1-4- 1965, means the average calculated upon the last one year: Provided that in respect of Government servants who retire on or after 1-1-1976 the term “Average Emoluments” shall mean the average calculated upon the last ten months of service.” Government Instructions – With effect from 1st January, 1976 the average emoluments are determined with reference to emoluments drawn during the last ten complete months. This work involves not merely an arithmetical calculation of the average emoluments but also a check of the correctness of the emoluments which enter into the calculation. The correctness of the emoluments on the first date of the ten months period would naturally depend on the correctness of the emoluments prior to this date. However, any such check of the correctness of past emoluments, whether in the office preparing the pension papers or latter in the office responsible for issuing the pension payment order, should not become an occasion for an extensive examination going back into the distant past, the check should be the minimum which is absolutely necessary and it should in any case not go back to a period earlier than a maximum of twenty four months preceding the date of retirement.”

13. The aforesaid rule came for consideration before the Hon’ble High Court of Jammu and Kashmir in the case of Chaman Lal Matoo Vs. State of J&K and others 2012 (2) JKJ 354 and the Hon’ble High Court has held that in view of statutory instructions appended to Article 242, the respondents have no authority to go beyond 24 months period prior to the date of retirement of the employee and dig the past record of the retired employee for finding as to whether the emoluments were paid correctly or incorrectly. Such an exercise, if permitted to be undertaken, would create chaotic situation for

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employee and his family. The employee can be deprived of the benefit of higher pay scale only if same is got by practicing fraud. In the case in hand, nowhere it has been stated that the deceased employee obtained the benefits of SRO 149 fraudulently.

14. In the instant case, the objection raised by the respondents for incorrect fixation of the pay of the deceased way back in the year 1987 onwards is impermissible to be looked into in view of the clear mandate of the Rule 242 of the J&K CSR, when the deceased in any way has not been instrumental in getting his pay fixed. After his retirement, deceased or his family cannot be permitted to be subjected to undue hardship. It was duty of the authorities concerned to have got periodically checked the fixation of payments as made to the deceased from time to time.

15. Coming to the legal position, with regard to the reduction of the pay scale of an employee and recovery of excess amount, the Hon’ble Supreme Court in a recent judgement in the case of Jagdish Prasad Singh Vs. State of Bihar and others delivered on 08.08.2024 in Civil Appeal No. 1635 of 2013 has held that a reduction of pay scale and recovery of excess amount from the pension of an employee who was drawing the pay scale applicable to the post since a long time, after his retirement is arbitrary and illegal as it amounts to punitive action which has drastic civil as well as evil consequences. Similarly, the Hon’ble High Court of Jammu & Kashmir and Ladakh in a latest judgement delivered on 28.08.2024 in the case of Jamshed Ahmad

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Khan Vs. UT of J&K – WP (C) No. 296 of 2024 while relying on several judgements of Hon’ble Apex Court including Union of India and others Vs. Jagdish Pandey and others decided on 08.07.2010, Sahib Ram Vs. State of Haryana and others 1995 Supp (1) SCC 18, Syed Abdul Qadir Vs. State of Bihar and others 2009 (3) SCC 475, State of Punjab Vs Rafiq Masih 2015 (4) SCC 334 and Thomas Danial Vs State of Keral and others – Civil Appeal No. 7115 of 2010 decided on 02.05.2022, has held that once a department has made the pay fixation of an employee without any misrepresentation or fraud by the said employee, then the employer cannot reduce the pay by alleging that the pay was fixed wrongly and that too at the fag end of the service of an employee or even after his retirement and that the pension of such an employee is to be fixed on the basis of last pay drawn by such employee and also no recoveries thereof can be either ordered or effected on account of such alleged wrong fixation at the fag end of that service or after the retirement of the said employee.

16. In view of the discussions made herein above, the T.A. is allowed and the communication bearing No. PNR-I/A/98- 99/304977/7040-15 dated NIL and order by virtue of which recovery of Rs. 18,886/- has been recovered from the gratuity of the deceased is quashed and set aside. The respondents are directed to sanction and release pensionary benefits in favour of the applicants on the basis of last pay drawn by the deceased at the time of his retirement/superannuation on 31.07.1998. The respondents are

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further directed to pay the recovered amount of Rs. 18,886/- along with interest @ 12%.

17. The exercise ordained above shall be completed within a period of eight weeks from the date of receipt of a copy of this order.

18. No order so as to costs.

(Pragya Sahay Saksena)

(Sanjeev Gupta) Administrative Member

Judicial Member

Arun…