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2002 DIGILAW 14 (JK)

Gh. Nabi Bhat v. State Of J. &K.

2002-02-17

MUZAFFAR JAN

body2002
1. This writ petition has been filed with the submissions that the petitioners 2 to 4 are serving in the J&K Police Department as selection grade officers and that petitioner No. 1 has retired. In pursuance of Rule 13(C) of the revised Pay Rules 1982, promulgated vide SRO 91, all the selection grade police officers were given two increments. This benefit was continued in terms of SRO 370 of 1987. However, In terms of SRO 75 issued in 1992, the benefit of the two increments was stopped retrospectively with effect from Ist April, 1987. In these changed circumstances, the main grievance of the petitioners at present is that, the respondents have directed recovery of the pecuniary benefits in the shape of two increments extended to them in pursuance of SRO 91 of 1992. In case of petitioner No.1, who has retired from service, SRO 75 of 1992 is being given effect to by stopping the retiremental benefits accruing in his favour whereas, in respect of other petitioners, the recovery is being made in the normal course. The petitioners submit that, on similar facts, a Coordinate Bench of this Court, while dealing with the issue involved in the present writ petition, in SWP No.860/93, Abdul Khaliq Wani and others v. State of J&K and others, decided on 14.9.1995 quashed the order of recovery of pecuniary benefits given to the selection grade Head Constables and declared SRO 75 of 1992 as illegal. On these submissions, it is prayed that direction be given to the respondents not to make recovery on this account from the petitioners as has been done in case of other similarly placed employees of the Police Department. 2. The stand of the respondents, as projected by Mr. G. Mustaffa, G.A is that the State is not in favour of in making the recoveries in view of the direction given by a Co-ordinate Bench of this Court in the writ petition Abdul Khaliq Wani and others v. State of J&K and others (supra). 3. 2. The stand of the respondents, as projected by Mr. G. Mustaffa, G.A is that the State is not in favour of in making the recoveries in view of the direction given by a Co-ordinate Bench of this Court in the writ petition Abdul Khaliq Wani and others v. State of J&K and others (supra). 3. It appears that difficulty has been faced by the respondents when one B. B. Bhat, Accounts Officer (P), in the official correspondence dated 19th February, 2002 addressed to the Senior Superintendent of Police, CID, SBK, Srinagar, objected to the processing of pension case of petitioner No.1 on the ground that the two increments withdrawn by the petitioner with effect from 9.12.1991 are to be recovered in pursuance of SRO 75 of 1992 from its pension amount. In view of the fact that a direction was already given by the Coordinate Bench of this Court on 14th September, 1995 that, no recoveries shall be made from any police personnel, whose cases would be covered by the directions contained in the aforesaid judgment, the objection raised by the Accounts Officer, namely, B.B.Bhat, is unjustified. 4. Vide order dated 6th February, 2003, direction was given to the above-named Accounts Officer, to explain the reason for non-compliance of the court order and to justify the objection taken by him in his communication dated 19th February, 2002. Although, time and opportunity was given to file objections, but till date no objections have been filed. However, the stand taken by Mr. Naik is that the objection has been raised because of the direction given by the Director General of Police, J&K, vide Office memo dated 31.3.1997 to make recovery of the amount withdrawn by these officers in pursuance of SRO 91 of 1981. Learned counsel has in this connection projected the relevant portion of the Office memo, paragraph 4 of which is reproduced below: 4. It is, therefore, enjoined upon all the DDOs/Heads of offices of the department to implement the court Judgment in letter and spirit to the extent it is allowed and recovery shall not be affected.� 5. Learned counsel has in this connection projected the relevant portion of the Office memo, paragraph 4 of which is reproduced below: 4. It is, therefore, enjoined upon all the DDOs/Heads of offices of the department to implement the court Judgment in letter and spirit to the extent it is allowed and recovery shall not be affected.� 5. Learned counsel further submitted that the judgment given by the Co-ordinate Bench of this Court dated 14th September, 1995 only pertains to the petitioners in that writ petition and would not govern the case of other personnel of the Police Department; therefore, the petitioners in the present case could not be considered under the judgment and the recovery is justified. 6. Heard learned counsel for the parties at length. 7. From the perusal of the relevant portion of the judgment dated 14th September, 1995 in SWP No.860/93 (supra), it is manifestly clear that SRO 75 in pursuance of which the recovery of advance increment was ordered, has been quashed. The relevant portion of the judgement is reproduced hereunder: .....In other words, the rules of 1992 cannot have a retrospective application to take away the pecuniary benefit already drawn by those Selection Grade Head Constables before the promulgation of the Rules of 1982 and when the Rules of 1987 were admittedly holding the field. As a consequence, any action for recovery of such benefit/increment drawn by the Selection Grade Head Constables between April, 1990 till 30.3.1992, when the rules were put in force, becomes patently illegal and lacks competence. On this parity of reasoning the impugned Circular seeking recovery of two advance increments drawn by the petitioners, Selection Grade Head Constables, upto 30.3.1992, cannot sustain and cannot be enforced. The same should be deemed to be an illegal action which is ordered to be quashed. In other words, those petitioners (Selection Grade Head Constables) who have drawn two advance increments pursuant to Rules of 1987 and upto 30.3.1992, shall be entitled to these increments and no recovery can be made from them." 8. These findings and directions of the Court in the aforesaid judgement will have universal application to such cases and shall not be construed to apply only to the case of the petitioners in that petition. These findings and directions of the Court in the aforesaid judgement will have universal application to such cases and shall not be construed to apply only to the case of the petitioners in that petition. Once the SRO/Circular has been quashed, then there is no scope of recovery of the advance increments which otherwise could not have been done without observance of the principles of natural justice, giving the affected persons an opportunity of being heard in view of the settled position of law that the principles of natural justice are applicable to almost the whole range of administrative powers [see R. L. Sharma v. Managing Committee, Dr. Hari Rim (Co-edn.) H. S. School], AIR 1993 SC 2155. 9. The facts and circumstances show that the Offices of respondents 4 and 5 are either amicably ignorant of the implication of the orders passed by this Court or deliberately avoid to show compliance thereto. In these circumstances, it is a fit case in which stern view is required to be taken. The order passed by the court way back in September, 1995 has `not been complied with till date and the objection is being raised by the Accounts Officer, B. B. Bhat in the year 2002 as if sitting in appeal over the Judgement of this Court. 10. Therefore, the writ petition is disposed of with direction that no recovery shall be made in case of those Police Personnel in whose favour advance increments have been permitted vide SRO 91 of 1981 and recovery has been ordered in terms of SRO 75 of 1992 in view of the judgement of the Coordinate Bench of this Court in SWP No.860/93. The petition is disposed of with costs of Rs.5,000/- to be recovered from the person of Accounts Officer, B. B. Bhat. Registrar Judicial will take necessary action for recovery of the costs from the said Accounts Officer.