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Judgment
ORDER
Per: - Ram Mohan Johri, Administrative Member
The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs: -
a)It is respectfully submitted that the Hon'ble Tribunal may in the face of the averments made herein above and those to be urged at the time of hearing before the Hon'ble Tribunal, quash PPO No. 1123177383 dated 01/05/2023 to the extent it fixes the pension of the applicant at diminished rate than the last pay drawn by the applicant in the light of the law laid down by the Hon'ble Division Bench of the Hon'ble High Court of J&K at Srinagar in Jamshed Ahmed's case on the identical issue of SRO 59 benefits read with the judgments rendered by the Hon'ble Supreme Court of India in Rafiq Masih, Thomas Daniel and Jagdish Prasad cases.
b)The Hon'ble Tribunal may further direct the respondents to release all the retiral benefits including the withheld gratuity and fix and disburse pension in favour of the applicant on the basis of last pay drawn by him at the time of his superannuation and to pay the arrears of the pension while taking into consideration Rule 242 of the Civil Services Regulations of 1956 read with the various judgments rendered by the Hon'ble Supreme Court of India read with the judgments rendered by the Hon'ble High Court of J&K at Jammu in State of Punjab Versus Rafiq Masih.
c)The Hon'ble Tribunal may further direct the respondents to release the arrears of the pension as well.
d)The Hon'ble Tribunal may also direct the respondents not to effect any recoveries from the applicant.
e)The Hon'ble Court may, in the facts and circumstances of the case, be pleased to grant any other alternate/additional relief in favour of the applicants in order to meet the ends of justice.
The facts of the case as averred by the applicant in his pleadings, are as follows: -
The case of the applicant, as projected in the Original Application, is that he was initially engaged as a Helper on daily-wage basis in the Public Health Engineering Department and was subsequently brought on the regular establishment of the Department. In terms of SRO 59 of 1990, and pursuant to the order dated 06.10.2016 passed by the Hon’ble High Court of J&K at Jammu in SWP No. 2193/2016, Rattan Lal and others v. State of J&K and others, the applicant was granted placement in the pay scale of Rs.950-1500 notionally with effect from 01.04.1996. He ultimately retired from service on 30.11.2022 as Assistant Lineman, a Class-IV employee.
It is pleaded that at the time of retirement, the applicant was drawing basic pay of Rs.53,600/- and, according to him, his pension ought to have been fixed at Rs.26,800/- per month. However, while settling his pensionary benefits, the respondents issued PPO No.1123177383 dated 01.05.2023 fixing his pension at Rs.18,050/- per month. The applicant contends that such fixation was made by ignoring the higher pay drawn by him pursuant to the benefit granted under SRO 59. He further alleges that his gratuity was withheld/recovered and was also calculated without taking into account the higher pay scale earlier granted to him.
The applicant asserts that the respondents could not reopen his pay fixation after retirement and reduce his pension by going back beyond the permissible period contemplated under Article/Rule 242 of the Jammu and Kashmir Civil Services Regulations, 1956. According to him, the relevant entries granting the benefit were duly incorporated in his service book and had not been altered or modified during his service. He further contends that recovery from a retired Class-IV employee is impermissible, placing reliance, inter alia, upon the judgment of the Hon’ble Supreme Court in State of Punjab v. Rafiq Masih.
The applicant has further relied upon the judgment dated 28.08.2024 rendered by the Hon’ble Division Bench of the High Court of J&K in Jamsheed Ahmed’s case, contending that the issue relating to grant of benefits under SRO 59 and subsequent recovery/refixation after retirement stands covered by the said judgment. On this basis, he seeks fixation of pension by taking into account the pay upgradation granted under SRO 59, release of withheld gratuity and consequential pensionary arrears.
It is also the case of the applicant that similarly situated employees working in the same Division have allegedly been granted pensionary benefits on the basis of their last pay drawn and their gratuity was released in February 2024. He, therefore, alleges discriminatory treatment and seeks quashing of the PPO dated 01.05.2023 to the extent it fixes his pension at a reduced rate, besides release of gratuity and other consequential retiral benefits.
The respondents have filed their written statement wherein they have averred as follows: -
On merits, the respondents submit that the service record of the applicant was examined at the Divisional level and it was noticed that the benefit of SRO 59 of 1990 had been extended to him with effect from 01.02.2017, although, according to the respondents, such benefit was not admissible to him. Their stand is that the provisions governing career progression of non-gazetted employees were contained in SRO 14 of 1996 and, therefore, the benefit under SRO 59 had been wrongly extended to the applicant. They further state that the benefit under SRO 59 was subsequently withdrawn in compliance with Government Order No.277-F dated 06.06.2018 and, consequently, the pay of the applicant was liable to be refixed after excluding the benefit earlier granted under SRO 59.
The respondents further plead that the applicant’s service book was forwarded to the office of the Accountant General, J&K, Jammu, for settlement of his pension case. On scrutiny, the Accountant General settled the pensionary benefits after excluding the alleged excess pay drawn by the applicant on account of the higher grade granted under SRO 59 of 1990.
Reliance has also been placed upon S.O. 129 dated 28.03.2022 issued by the Finance Department, whereby Article 242 of the J&K Civil Services Regulations was amended. According to the respondents, the restriction regarding verification of pay for only 24 months preceding retirement is not applicable where an employee has been granted an undue benefit under a deleted or withdrawn SRO/Government Order beyond the date of its deletion or withdrawal. On this basis, the respondents contend that the authorities were competent to scrutinize and refix the applicant’s pay notwithstanding the period for which the alleged erroneous benefit had continued.
It is further the stand of respondents No.1 to 3 that any amount drawn by an employee without lawful entitlement constitutes public money and cannot be permitted to be retained merely because the erroneous fixation continued for a period of time. They, therefore, maintain that the competent authority was entitled to correct the pay fixation and, according to their pleadings, to effect recovery of the amount found to have been paid in excess.
Respondent No.4 has filed a separate reply, raising preliminary objections that the applicant has concealed material facts and that the Original Application has not been filed in the prescribed manner. On merits, respondent No.4 submits that while processing the pension case, it was noticed that the Department had fixed the applicant’s pay by allowing him the benefit of SRO 59 which, according to respondent No.4, was not admissible. Accordingly, pensionary benefits were authorized on the pay considered legitimately due, PPO and CPO were issued, while DCRG was kept withheld. The matter was also taken up with the concerned DDO vide communication dated 16.05.2023 for re-examination in the light of S.O. 129 of 2022, but no response had been received from the DDO till the filing of the reply.
Respondent No.4 further states that while submitting his pension papers, the applicant had furnished an undertaking in Form-A, duly countersigned by the DDO, acknowledging that his pension/gratuity would be subject to revision if subsequently found to be in excess of his lawful entitlement and undertaking to refund any excess amount received. Reliance is again placed upon S.O. 129 dated 28.03.2022 amending Article 242 of the J&K Civil Services Regulations. According to respondent No.4, since the applicant retired after the issuance of S.O. 129 of 2022, his case was governed by the amended provisions.
Respondent No.4 has also referred to the order dated 04.04.2024 passed by this Tribunal in O.A. No.61/1111/2021 along with connected Original Applications, wherein, as pleaded by respondent No.4, the amended provisions of Article 242 introduced through S.O. 129 dated 28.03.2022 were held to operate prospectively. Since the applicant retired on 30.11.2022, respondent No.4 maintains that the amended provision applies to his pension case.
Heard learned counsel for the parties and perused the pleadings made by them.
The controversy involved in the present Original Application pertains to the benefit granted to the applicant under SRO 59 of 1990 and the subsequent action of the respondents in refixing his pension and recovering/withholding the alleged excess amount from his retiral benefits.
The applicant was granted the benefit of SRO 59 during his service and his pay was accordingly fixed. He continued to draw salary on the basis of such fixation and ultimately retired on 30.11.2022 as Assistant Lineman, a Class-IV employee. At the time of retirement, his basic pay was Rs.53,600/-. However, while settling his pensionary benefits, the respondents excluded the benefit earlier granted under SRO 59 and fixed his pension at a reduced rate.
The respondents have justified their action on the ground that the benefit of SRO 59 had been wrongly extended to the applicant and that the same was liable to be withdrawn. They have further relied upon S.O. 129 dated 28.03.2022 and the amended provisions of Article 242 of the J&K Civil Services Regulations.
The Hon’ble High Court, in its recent pronouncement dated 06.03.2026 in WPI No. 936/2025 along with connected matters, titled UT of J&K & Ors. vs. Maqbool Sheikh & Ors., while adjudicating upon the issue related to benefits granted under SRO 59, has categorically held as under:
“42.Accordingly, all these writ petitions are disposed of by modifying the impugned order(s) to the extent that the petitioners shall not affect any recovery of the excess amount already paid to the respondents and, if any such amount has been recovered, the same shall be refunded to them within the period prescribed by the learned Tribunal. However, the petitioners shall be at liberty to re-fix the pay/pension of the respondents by excluding the benefit wrongly granted to them.”
A plain reading of the aforesaid extract leaves no manner of doubt that the Hon’ble High Court has unequivocally prohibited the recovery of any excess payment already disbursed to the employees. It has further been mandated that any recovery, if already effected, must be refunded within the stipulated timeframe. At the same time, a liberty has been reserved in favour of the respondents to undertake re-fixation of pay/pension by excluding only such benefit as may have been erroneously granted.
The case of the applicant is squarely governed by the aforesaid principle. The applicant is a retired Class-IV employee and there is nothing on record to establish that the benefit was obtained by him by fraud or misrepresentation. The fixation was made by the Department itself and the applicant merely received the salary consequent upon such fixation. Therefore, while the respondents are at liberty to correct the erroneous fixation and determine the pension of the applicant according to his lawful entitlement, recovery of the amount already paid to him cannot be sustained.
In view of the law laid down by the Hon'ble High Court in Maqbool Sheikh (supra), the distinction between refixation and recovery has to be maintained. Refixation of the pay/pension in accordance with the applicable rules is permissible, whereas recovery of the excess amount already paid to the applicant is impermissible.
Accordingly, the present Original Application is partly allowed. The respondents are at liberty to refix the pay and pension of the applicant in accordance with the applicable rules by excluding the benefit under SRO 59, if the same was wrongly granted. However, no recovery shall be effected from the applicant on account of the excess amount already paid to him.
In case any amount has already been recovered or adjusted from the gratuity/DCRG or any other retiral benefits of the applicant towards the alleged excess payment arising out of the benefit under SRO 59, the same shall be refunded to the applicant. Thereafter, the respondents shall release the gratuity and other admissible retiral benefits on the basis of the pay/pension lawfully refixed.
The aforesaid exercise shall be completed by the respondents within a period of three months from the date of receipt of a certified copy of this order.
The Original Application stands partly allowed in the above terms. No order as to costs.