Himachal Singh vs State and Others

Mansoor Ahmad Mir, J.—It is contended that the Petitioner was an employee of Animal Husbandry Department and reached the age of

superannuation on 30.4.2006. The Respondent-department vide order dated 20.3.2006 read with order dated 20.4.2006 and Letter No. E-

310/6237 dated 25.7.2006 re-fixed the pay of Petitioner and, accordingly, directed for fixing his pension and other service benefits and for

recovery of alleged excess amount drawn. Feeling aggrieved, the Petitioner has questioned the said orders/communication by the medium of

present writ petition on the grounds taken in it.

Precisely the case of Petitioner is that he held the post of Veterinary Assistant till he reached the age of superannuation. Further it is contended

that the Respondents without any justification and competence have directed to effect recovery after re-fixing his pay, that too after he has reached

the age of superannuation. It is prayed that the impugned orders/communication be quashed and Respondents be directed to pay pension and

other service benefits in terms of the pay last drawn by him.

The Respondents have admitted in their reply that the order of promotion of Petitioner was questioned before the Court and in terms of the

judgment of Division Bench the Petitioner and other employees came to be demoted, but despite that the Petitioner was holding and working

against the post of Veterinary Assistant till he reached the age of superannuation.

In the given circumstances the question involved is whether the Respondents are within their power and competence to re-fix the pay of an

employee after his superannuation and direct recovery of the alleged excess amount drawn and fixing his pension accordingly. The answer is

negative for the following reasons.

It is beaten law of the land that when the pay is fixed wrongly by the Department without any fault of an employee, the department cannot at the

fag end of service of such employee or after his retirement re-fix the pay and reduce the same and direct for re-fixing the pension and other service

benefits accordingly. The department thus cannot direct recovery of the alleged excess amount drawn.

The Petitioner has at his back 34 years of service. He retired as Veterinary Assistant and has manned the said post till he reached the age of

superannuation. The Respondents have to fix the pension of Petitioner on the basis of the salary last drawn by him and have to calculate the

pensionary benefits accordingly.

My view is fortified by the judgments passed in Perduman Krishan Khullar Vs. Union of India (UOI) and Others, ; Mulakh Raj v. Union of

India SWP No. 341/2003 decided on 3.11.2006; Bhushan Kumar v. Union of India SWP No. 1065/2006 decided on 5.4.2007; Maryam Bano

v. State 2003 (1)SLJ 188; State v. Mohd. Aziz Khan LPA(OW) No. 200/2002, decided on 21.8.2002 and Mahmood Beigh v. Union of India

SWP No. 1362/2006 decided on 15.11.2008.

Viewed thus, the writ petition is allowed and the impugned orders/communication are hereby quashed. The Respondents are directed to release

the pension and other service benefits in favour of Petitioner within six months from today after fixing his pension on the basis of pay last drawn by

him.

Disposed of along with all CMPs.