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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. 1123182854 dated 13/11/2023 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 she was initially engaged as a Helper on daily-wage basis in the respondent Department and was subsequently brought on the regular establishment as Helper. In due course, she was granted placement in the pay scale of Rs.950-1500 notionally with effect from 01.04.1994. She continued to serve the Department and ultimately retired from service on 31.03.2023 as a Class-IV employee. Upon her retirement, her case was forwarded to the Accountant General for settlement of pension and other retiral benefits.
The grievance of the applicant is that while settling her pensionary benefits, the respondents did not take into account the pay actually drawn by her at the time of retirement and fixed her pension at a reduced rate. According to the applicant, the higher pay drawn by her was consequent upon the benefit extended under SRO 59 of 1990 and the same could not have been ignored at the stage of retirement for reducing her pension. She further alleges that an amount payable towards gratuity was adjusted/recovered on account of the alleged excess payment arising from withdrawal of the benefit of SRO 59.
The applicant has further pleaded that the relevant pay fixation stood duly recorded in her service book and remained operative during her service. According to her, the respondents could not reopen the pay fixation after her retirement and travel back beyond the permissible period contemplated under Article/Rule 242 of the J&K Civil Services Regulations. She has also challenged the recovery on the ground that she was a Class-IV employee who had already retired and that the alleged excess payment was not attributable to any fraud or misrepresentation on her part. In support of her claim against recovery, she has placed reliance, inter alia, upon the principles laid down in State of Punjab & Others v. Rafiq Masih (White Washer) & Others.
The applicant has also relied upon the judgment dated 28.08.2024 rendered by the Hon'ble High Court of J&K and Ladakh in Jamsheed Ahmed's case, concerning the grant of benefit under SRO 59 and subsequent refixation/recovery. She has further referred to a judgment dated 08.04.2025 passed by this Tribunal in an allegedly similar matter. On these premises, she seeks quashing of PPO No.1123182854 dated 13.11.2023 to the extent her pension has been fixed at a reduced rate, restoration/fixation of pension on the basis of the pay claimed by her, release of consequential pensionary benefits and arrears, and protection against recovery.
The respondents have filed their written statement wherein they have averred as follows: -
On merits, the respondents submit that upon examination of the applicant’s service record, it was noticed that the benefit of SRO 59 of 1990 had been extended to her with effect from 01.02.2017, although, according to the respondents, such benefit was not admissible to her since the scheme for career progression applicable at the relevant time was governed by SRO 14 of 1996. It is their specific case that the benefit under SRO 59 was wrongly extended to the applicant and was subsequently required to be withdrawn in compliance with Government Order No.277-F dated 06.06.2018. Consequently, according to the respondents, her pay and pension were liable to be refixed after excluding the inadmissible benefit of SRO 59.
The respondents further plead that when the applicant's service book was forwarded to the office of the Accountant General for settlement of her pension case, the Department was advised to refix her pay after excluding the benefit wrongly granted under SRO 59 and to work out the excess drawal of pay and allowances. Accordingly, the pension case was processed on the basis of the refixed pay and the excess amount allegedly drawn on account of the higher grade under SRO 59 was determined for recovery.
With regard to the applicant's reliance upon Article 242 of the J&K Civil Services Regulations and the restriction of checking pay particulars beyond 24 months preceding retirement, the respondents rely upon S.O. 129 dated 28.03.2022 issued by the Finance Department. According to them, the amendment provides that the restriction of 24 months would not apply where an undue benefit under a deleted or withdrawn SRO/Government Order has been extended beyond the date of its deletion or withdrawal. On this basis, they maintain that the refixation of the applicant's pay was permissible notwithstanding the period for which the benefit had continued.
The respondents have further maintained that the excess payment made to an employee represents public money and that an employee cannot retain an amount to which he or she was not legally entitled. They accordingly contend that the Department was competent to correct the erroneous pay fixation and work out the consequential excess payment. On these grounds, respondents No.1 to 3 seek dismissal of the Original Application.
Respondent No.4 has also opposed the Original Application. It is pleaded that while forwarding the pension case, the concerned DDO, vide communication No. PHEDN/4094 dated 12.10.2023, informed the Accountant General that the applicant had been extended the benefit of SRO 59 during the period from March 2017 to December 2019 and that her pay had thereafter been refixed after excluding the said benefit. The DDO calculated the alleged excess drawal at Rs.5,32,772/- and requested that the said amount be deducted while authorizing the remaining retirement benefits. The same amount was reflected in the relevant pension forms and the due-and-drawn statement accompanying the pension case.
Respondent No.4 states that pensionary benefits, including PPO/GPO/CPO, were authorized on the basis of the last pay as refixed by the Department and recorded in the service book and Form-7. It is specifically denied that the entire gratuity of the applicant was withheld. According to respondent No.4, against the total gratuity of Rs.8,05,992/-, an amount of Rs.2,73,220/-was authorized in favour of the applicant, whereas Rs.5,32,772/- was recovered on the recommendation of the DDO towards the alleged excess payment.
Respondent No.4 has additionally relied upon an undertaking furnished by the applicant, countersigned by the DDO, whereby the pension/gratuity was stated to be subject to revision in case it was subsequently found to be in excess of her entitlement and the applicant undertook to refund any excess amount. Reliance has also been placed upon S.O. 129 dated 28.03.2022 amending Article 242 of the J&K CSR. Respondent No.4 has further referred to the order dated 04.04.2024 passed by this Tribunal in O.A. No.1111/2021 and connected matters, wherein, according to its pleading, the amended provisions introduced through S.O. 129 dated 28.03.2022 were held to operate prospectively.
Heard learned counsel for the parties and perused the pleadings made by them.
The controversy involved in the present Original Application lies in a narrow compass. Two distinct issues arise for consideration: firstly, whether the respondents are entitled to correct/refix the pay and pension of the applicant by excluding the benefit of SRO 59, if the same was erroneously granted; and secondly, whether the alleged excess amount already paid to the applicant can be recovered from her retiral benefits.
The aforesaid controversy is no longer res integra. The issue relating to SRO 59 has now been authoritatively settled by the Hon'ble High Court of Jammu & Kashmir and Ladakh in UT of J&K & Ors. v. Maqbool Sheikh & Ors., WP(C) No. 936/2025 along with connected matters, decided on 06.03.2026. The Division Bench, disposed of the petitions by holding that while no recovery of the excess amount already paid could be affected and any amount already recovered was liable to be refunded, the employer would remain at liberty to refix the pay/pension by excluding the benefit wrongly granted.
The legal distinction between refixation and recovery is, therefore, material. Correction of an erroneous pay fixation determines the pay or pension legally admissible to an employee for the future. Recovery, on the other hand, seeks restitution of monetary benefits already paid and received. The prohibition against recovery does not, by itself, create a perpetual right to continue drawing a pay or pension founded upon an erroneous fixation. The Division Bench in Maqbool Sheikh has expressly preserved the authority of the employer to correct the pay/pension while simultaneously protecting the employees against recovery of the amounts already paid.
The same principle has also been followed by this Tribunal in O.A. No. 61/492/2025, Koushal Kumar & Others, wherein it was noticed that in cases governed by SRO 59, refixation of pay/pension is permissible, whereas recovery of the alleged excess payment cannot be sustained and any amount already recovered is liable to be refunded. The operative portion of that decision further directs that no recovery be effected and that the amount already recovered, if any, be refunded.
Applying the aforesaid settled position to the present case, we find no legal impediment in permitting the respondents to refix the pay and consequential pension of the applicant after excluding the benefit under SRO 59, if the said benefit was not otherwise admissible to her under the applicable rules. Thus, the applicant cannot insist that merely because a particular pay was drawn by her before retirement, such fixation must necessarily continue for pensionary purposes despite the competent authority finding the underlying benefit to have been erroneously extended. The challenge to the PPO, therefore, cannot succeed merely on the ground that the pension has been calculated on the basis of the refixed pay.
However, an entirely different consideration applies to the recovery of Rs.5,32,772/- from the retiral benefits of the applicant. The applicant admittedly retired as a Class-IV employee on 31.03.2023. The recovery was effected at the stage of settlement of her pensionary benefits. The case, therefore, directly attracts the protection recognized in Maqbool Sheikh, wherein recovery of the excess amount already paid under the erroneous SRO 59 fixation has specifically been prohibited.
The position also finds support from the principles enunciated by the Hon’ble Supreme Court in State of Punjab & Ors. v. Rafiq Masih (White Washer) & Ors., wherein recovery from Class-III/Class-IV employees and retired employees was identified amongst the situations where recovery of excess payment would be impermissible in law. In the present matter, the applicant satisfies both considerations, being a retired Class-IV employee.
The contention regarding the undertaking furnished by the applicant at the time of processing her pension papers does not alter the result in the peculiar circumstances of the present case. The subsequent Division Bench judgment in Maqbool Sheikh, dealing specifically with the SRO 59 controversy, has expressly drawn the line between permissible refixation and impermissible recovery. This Tribunal is bound to apply the law as settled by the jurisdictional High Court to the controversy before it.
Consequently, while the respondents may correct/refix the applicant’s pay and pension by excluding the SRO 59 benefit found to have been wrongly extended, the monetary benefits already paid to the applicant prior to such correction cannot be recovered from her. The amount of Rs.5,32,772/-, which according to respondent No.4 was adjusted/recovered from the gratuity payable to the applicant, therefore, cannot be retained by the respondents and is liable to be refunded.
The applicant’s reliance upon the last pay actually drawn cannot, however, be accepted to the extent it seeks continuation of an erroneous SRO 59 benefit for future pension. Once refixation is legally permissible, pension and other recurring retiral benefits necessarily have to follow the pay lawfully determined upon such refixation. At the same time, such refixation shall operate without authorizing recovery of the excess amount already paid for the past period.
In view of the foregoing discussion and the law laid down by the Hon'ble High Court in UT of J&K & Ors. v. Maqbool Sheikh & Ors., the present Original Application deserves to be partly allowed.
Accordingly, the Original Application is disposed of with the following directions:
The respondents shall be at liberty to refix the pay and pension of the applicant by excluding the benefit under SRO 59 of 1990, to the extent the same was wrongly/inadmissibly granted to her, strictly in accordance with the applicable rules and the law laid down in Maqbool Sheikh.
However, no recovery shall be effected from the applicant on account of the excess amount already paid to her consequent upon the earlier grant of benefit under SRO 59.
The recovery/adjustment of Rs.5,32,772/- from the gratuity/retiral benefits of the applicant is accordingly held to be unsustainable. The respondents shall refund/release the said amount to the applicant, subject to verification of the amount actually recovered, within a period of three months from the date of receipt of a certified copy of this order.
The pension and other recurring pensionary benefits of the applicant shall thereafter be regulated on the basis of the pay lawfully refixed after excluding the inadmissible SRO 59 benefit, and the applicant shall not be entitled to claim continuation of such erroneous benefit merely on the ground that the higher pay was drawn by her prior to retirement.
It is clarified that the aforesaid refixation shall not furnish any basis for making past recovery from the applicant.
The Original Application is accordingly partly allowed and disposed of in the above terms. No order as to costs.