layaqat ali lati vs RURAL DEVELOPMENT DEPARTMENT UT OF LADAKH on 31 December 2024

O R D E R

M.S.Latif, Member (Judl.) :- Through the medium of this OA the applicant seeks for the following relief:- “(i) Direct the respondents particularly respondent no.3 to prepare and submit the correct and actual service record of the deceased father of the applicant to the respondent no.4 giving the benefit of actual pay and grade for the post of Block Development Officer held by the deceased father with effect from 18.01.2001 to 30.11.2011 and forward the pay and due drawn statement to the respondent no.4 accordingly and consequently direct the respondents 4 to issue the Revised PPO in favour of the applicant with all pensionary benefits like total amount of family pension and the amount of gratuity in favour of the applicant.

(ii) Direct the respondent no.3 to release the Leave Salary of the deceased father as admissible under rules in favour of the [2] OA 464 of 2023

applicant as the same has not been processed and paid to the deceased father of the applicant.

(iii) Direct the respondents to release and pay back to the applicant the excess pay recovery of an amount of Rs.9,23,625/- deducted from the amount of Family Pension/Gratuity as indicated and mentioned in communication dated 10.09.2022 issued by the Respondent no.4 (Annexure-II) to the applicant, without any loss of time.

(iv) Direct the respondents to calculate and pay the overall interest @ 8% per annum on the total amount of family pension, gratuity and Leave Salary etc. with effect from the date of retirement viz. 30.11.2011 till the actual date of its final realization in favour of the applicant.

(v) Direct the respondents to pay to the applicant Rupees Two Lacs towards the costs of litigation, as the genuine and legitimate claim of the deceased father/applicant has unnecessarily been delayed for eleven long years as on to date.

(vi) Any other, writ, order or direction, which this Hon’ble Court may deem fit and proper in the present circumstances of the case may also be issued in favour of the petitioner and against the respondents along with the costs.

2. The facts that emerged from the pleadings of the Original Application (OA) are that the applicant’s father was an employee of the respondent department who retired on superannuation on 30.11.2011 in terms of the superannuation notice dated 23.11.2011 issued by the respondent no.2. The father of the applicant was working and holding the post of Block Development Officer TSG Block, Kargil. It is next averred in the application that the father of the applicant died on 05.11.2012. Death certificate to this effect is also appended with the application. The pension case of the deceased father of the applicant (a Govt. employee) could not be processed and finalised during his lifetime as such, no family pension or other pensionary benefits were released and paid in favour of the applicant, being the only legal heir of his father, primarily on the ground that no service record of the deceased father of the applicant was available with the respondents.

[3] OA 464 of 2023

3. The applicant was constrained to file a writ petition before the Srinagar Wing of the Hon’ble High Court, bearing SWP No. 1533 of 2018, wherein vide order dated 11.10.2019 the officer representing the respondent department had undertaken that the service book of the deceased father of the applicant would be reconstructed and accordingly the pension case would be settled within the reasonable time.

4. Thereafter, the said writ petition came to be transferred to this Tribunal and was numbered as TA 5187 of 2020 which was disposed of vide order dated 27.04.2021 directing the respondents to finalise the issue pertaining to pension and release all corresponding amount that was payable to the father of the applicant within a period of two months from the date of receipt of a copy of that order. It is averred that the respondents after receipt of the aforesaid order failed to implement that order in its letter and spirit and the applicant was compelled to maintain a Contempt Petition before this court bearing No. 204 of 2021, which was disposed of vide order dated 20.02.2023.

5. So far instant OA is concerned, on 08.06.2023, Mr. T.M.Samshi, DSGI, learned counsel for the respondents was granted six weeks time to file his reply. Thereafter, vide order dated 05.08.2023 he again sought for four weeks time to file reply and then again on 27.09.2023 six weeks time were sought for filing of the reply and then again on 15.12.2023 respondents sought for four weeks time to file their detailed reply on which date it was made clear that in absence of the reply the matter will be heard on its merits. Despite order dated 15.12.2023 the respondents did not file their response who were, however, again granted six weeks time to file their reply and then on 15.04.2024 again six weeks time were granted for filing of the rely. Despite ample opportunities given therefor, the respondents did not file their counter and vide order dated 10.06.2024 six weeks time was again granted failing which it was ordered that the officer concerned shall be liable to be present before this Court. Then again, [4] OA 464 of 2023

matter coming up on 11.09.2024 the respondents further sought six weeks time to file their reply. The matter came up for consideration on 22.10.2024 on which date the learned counsel for the respondents appeared and submitted that reply has been filed and the matter was ordered to be listed on 12.11.2024 as the pleadings were complete

6. Perusal of the reply/objection filed by the respondents reveals that the respondents obtained instructions from the Dy. Commissioner for reconstruction of the service book of the deceased Layaqat Ali Lati, Ex-BDO, TSG Kargil, and at the same time the applicant was directed to furnish the matriculation certificate of his father for preparation of his service book. It is further averred in the reply that on the basis of the matriculation certificate submitted by the applicant, the date of birth of the deceased employee was shown/entered as 14.02.1951 and after the completion of the pension papers the same were submitted to Pay and Accounts Officer, District Treasury Kargil, vide communication dated 18.06.2021 for sanction of family pension as per rule. It is also averred that the Pay & Accounts Office, District Treasury Kargil vide his communication dated 10.09.2022 submitted the status report to the Project Officer, ACD Kargil, wherein the excess pay recovery from the applicant’s father amounting to Rs.9,23,625/- for the period March,2009 to 30.11.2011 was shown as due to be recovered from him. However, it is averred that the leave salary of the applicant’s father is under process for approval of the competent authority.

7. Learned counsel for the applicant submitted that vide communication dated 10.09.2022 issued by the District Treasury Officer (Pay and Accounts Office) Kargil/Ladakh, recovery of Rs.9,23,625/- as excess pay recovery has been shown and the same has been deducted from the family pension of the applicant under PPO No. 09031 2100868 dated 28.08.2021, read with communication dated 10.09.2022 issued by the respondent no.4.

[5] OA 464 of 2023

8. In support of his contention the applicant has taken the following grounds with legal provisions:-

(i) The inaction on the part of the respondents in delaying the matter with regard to finalization of family pension case and release of pensionary benefits in favour of the applicant on one pretext or the other for about eleven years is bad, unconstitutional and illegal thereby putting the applicant to a great loss and mental torture for his no fault.

(ii) The respondents have issued PPO and other pensionary benefits in disregard to the actual entitlement of the applicant, in that, not only the excess pay recovery of Rs.9,23,625/- has been effected but the actual pay and grade attached to the post of Block Development Officer held by the deceased father of the applicant with effect from 18.01.2001 to 30.11.2011 has not been recorded in his service book with the result no benefit whereof has been given to the applicant while issuing the pensionary benefits in favour of the applicant. The respondents are duty bound to reconstruct the exact service record of the deceased father and issue the revised PPO and other pensionary benefits in favour of the applicant. Aforesaid inaction on the part of the official respondents is an arbitrary, colourable exercise and abuse of power besides subjecting the applicant to highest degree of discrimination, agony, frustration and anguish, which is not countenance by law.

(iii) The respondents have failed to address to the rightful and legitimate claim of the applicant and have issued PPO and other pensionary benefits without application of mind and have affected the excess pay recovery for no fault on the part of the deceased father. That constant and continuous failure of the respondents to redress the legitimate and rightful grievance of the applicant despite having been demanded repeatedly and commanded by the Hon’ble Court runs in serious derogative to the settled principles of equity, good

[6] OA 464 of 2023

conscience, fair play and natural justice inasmuch as abrogates legal, fundamental and statutory rights of the applicant.

(iv) The respondents have delayed the pension case for eleven years on the ground that service record is not available and when the service record was reconstructed on the directions of the Hon’ble Court/Tribunal and PPO and other benefits released it has been proposed that the deceased father has over stayed by two years and have deducted the excess pay recovery from the family pension arrears of the applicant, which action on the part of respondents is an arbitrary, harsh and based on some vengeance as admittedly the father of the applicant has been allowed to discharge his duties upto the date of 30.11.2011.

(v) The question of excess pay recovery does not arise at all on the ground that the deceased father having been allowed by the respondents and have worked and discharged his duties up to the date of retirement viz. 30.11.2011 and received the dues as such for which no recovery can be affected. In this regard, the applicant has referred and relied on the following judgments delivered by the:

(a) Hon’ble Supreme Court in case, State of Punjab and others versus Rafiq Masih (White Washer) etc. along with bunch of cases, reported in 2015 AIR (SC) 696;

(b) Hon’ble High Court of J&K in case, Rajinder Kumar Gupta versus State of J&K and others, reported in 2006 SLJ 368; and

(c) Hon’ble Central Administrative Tribunal, Mumbai in case, Shankar Baluram Ladehllu Versus Union of India and others, reported in 2007 (1) SLJ 316 CAT.

(vi) Even otherwise, the respondents under law were obliged to maintain the service record of the deceased father of the applicant and once it has been agitated that the service record [7] OA 464 of 2023

was not available and the respondents having undertaken before the Hon’ble Court that service record would be reconstructed within a reasonable time, it was incumbent and obligatory upon the respondents to prepare the true and correct service record and not the incorrect service record just to complete the formality.

(vii) Non-application of mind and casual approach adopted by the respondents in deciding the case of the deceased father of the applicant is that the deceased father was entitled to receive the amount of Leave Salary at the time of his retirement of services, which too has not been processed, sanctioned and paid to the applicant after the death of his father under rules as is evident from the plain reading of the reply filed by the respondents, therefore, a command is required to be issued to the respondent no.3 to release the Leave Salary of the deceased father and paid to the applicant being his lonely legal heir.

9. Perusal of the first page of the service book as appended by the applicant in the OA, which is at page no. 45, reveals that the date of birth of the applicant’s father as recorded in the service book is 14.02.1951 and according to the recorded date of birth he was to superannuate on 28.02.2009. As such, the applicant’s father has over- stayed i.e. from 01.03.2009 to 30.11.2011 and it is for this reason that the respondents have recovered the excess salary drawn by the applicant’s father.

10. We have heard the learned counsel for both the sides and perused the material available on the record.

11. Learned counsel for the applicant when confronted with the situation that as per the date of birth, as recorded in the matriculation certificate and his service book, the applicant’s father had to superannuate on 28.02.2009 but he continued even [8] OA 464 of 2023

thereafter, the learned counsel submitted that vide communication dated 23.11.2011 the applicant’s father retired from service w.e.f. 30.11.2011 in view of the superannuation notice issued by the BDO Hqr. He further submits that as per the records available with the office, the deceased had attained the age of superannuation on 30.11.2011 and submits that there has been no malafide attached to the applicant’s father for his overstayal. He further submits that even if it is so, the applicant’s father has actually worked for this period that too, under the knowledge of the respondents and submits that the respondents could not have recovered the excess salary drawn by the applicant’s father. In this regard the learned counsel for the applicant has referred to the following judgments:- (a) Hon’ble Supreme Court in case, State of Punjab and others versus Rafiq Masih (White Washer) etc. along with bunch of cases, reported in 2015 AIR (SC) 696;

(b) Hon’ble High Court of J&K in case, Rajinder Kumar Gupta versus State of J&K and others, reported in 2006 SLJ 368; and

(c) Hon’ble Central Administrative Tribunal, Mumbai in case, Shankar Baluram Ladehllu Versus Union of India and others, reported in 2007 (1) SLJ 316 CAT.

12. The question for determination before this Court is whether the deceased father of the applicant was liable for the recovery of the excess pay for his overstayal that too, after his retirement when he had actually worked for that period and when there was no misrepresentation or connivance on his part. The fact is not in dispute that the deceased was allowed to work to the entire satisfaction of the respondents and it would be unjust and unfair to deny the deceased, now the applicant, the salary for the period the deceased had worked i.e. from 01.03.2009 to 30.11.2011. We say so, because we are fortified in this regard by the judgment of the Hon’ble Supreme Court in the case titled as State of Bihar & Ors. vs. Pandey [9] OA 464 of 2023

Jagdishwar Prasad C.A.No. 7237/2008. We are also fortified by another judgment of the Apex Court titled as Kailash Singh vs. State of Bihar & Ors. reported in AIR SCW 2005, 3273.

13. The respondents in their reply have not denied that the deceased has not worked during the period of dispute and it was never brought to the knowledge of the applicant during his service career. As any recovery of amount for the period the deceased has actually worked would be iniquitous, harsh and arbitrary to such an extent as would far outweigh the equitable balance of right to recover. To this extent we are also fortified by the judgment of the Allahabad High Court judgment titled as UOI through General Manager, Northern Railway vs. Kaushalaya Nandan Sharan Verma & anr. , case no. 16855/2016 and also judgment passed by the Jharkhand High Court in WPS No. 4251 of 2014 titled as Krishna Murari Prasad vs State of Jharkhand & Ors. We are also fortified in this view by a judgment of the Hon’ble Apex Court titled as Man Singh vs. state of U.P. and Ors. reported in 2022 Live Law SC 341, wherein their Lordships have held that even if appointment was irregular the appellant had discharged the duties and in lieu of duties he had to be paid and the State cannot take any work from an employee without payment of salary.

14. Mr. T.M.Samshi, the learned counsel for the respondents submits that the delay in the process of the pensionary benefits was only on account of the delay in submission of the requisite papers by the applicant. However, he fairly submits that it is not denied that the deceased did not continue to work till 30.11.2011. It is not in dispute that the deceased father of the applicant has superannuated from service. It is also not in dispute that the recovery of the excess pay has not been affected during the period of his service. It is not the case of the respondents that the deceased employee had either connived with the DDO or he misrepresented before the respondents regarding his over stayal which is substantiated from the [10] OA 464 of 2023

communication dated 23.11.2011 i.e. superannuation notice. In this regard, we are also fortified by catena of judgments viz –

(i) Thomas Daniel vs. State of Kerala; 2022 LiveLaw SC 438;

(ii) Rita Gupta vs. State of J&K; 2024 Legal Eagle J&K 207;

(iii) Sabita Shah Naiyyar vs. State of Tripura; 2024 Legal Eagle TRI 295;

(iv) Sarutu Nohar vs. PHED & Ors; 2024 Legal Eagle MP 747;

(v) Apurba Chakraborty vs. State of Tripura & Ors; 2023 Legal Eagle TRI 532;

(vi) Peerjada Ghulam Nabi vs. State of J&K; 1992 Srinagar Law Journal 121;

(vii) State of J&K & Ors. vs. Ezaj Hussain Sahaf; 2018 Legal Eagle (J&K) 285 DB;

(viii) 2024 Legal Eagle MP 725;

(ix) 2024 Legal Eagle MP 619;

(x) 2024 Legal Eagle ALD 605;

(xi) U.T. of J&K & Ors. vs. Desbir Singh & Anr; LPA No. 119/2009 decided on 22.09.2003; and

(xii) Vinod Kumar vs. U.T. of J&K & Ors.; WP(C) No. 846 of 2000.

15. In view of the aforesaid settled position it is clear that the respondents cannot effect recovery of excess salary drawn by the deceased father of the applicant during his service career as no fraud or misrepresentation has been alleged against the deceased father of the applicant. Accordingly, the recovery to the tune of Rs.9,23,625/- shown as excess pay recovery vide communication dated 10.09.2022 is hereby set-aside and quashed. It is, however, open to the respondents to fix the pension and other pensionary benefits of the deceased as per his actual date of superannuation in terms of his date of birth recorded in his service record i.e. 28.02.2009 as also the date of birth reflected in his matriculation certificate issued by the J&K Board of Secondary Education wherein the date of birth of the deceased has been shown as 14.02.1951. It is also ordered that the [11] OA 464 of 2023

respondents will without any further delay finalise the pension/family pension and other pensionary benefits for which the deceased was entitled to and shall make payment after verifying the entitlement of the applicant to receive the same in accordance with law.

16. In view of above, the OA stands disposed of with no order as to costs.

Sd/-

sd/- (Prasant Kumar)

(M.S.Latif) Member (Admn.)

Member (Judl.)

skj