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J&K High Court · body

2009 DIGILAW 301 (JK)

Jagdish Chand v. State

2009-06-05

SUNIL HALI

body2009
1. After superannuation, the petitioner sought release of his post retiral benefits. Sanction was accorded to the post retiral benefits vide Payment Order No. PPO-Cell/99-2000/19003-04 dated 27.8.1999. The Gratuity was also sanctioned in his favour vide order No. PPO-Cell/99-2000/19005-07 dated 27.8.2009. While releasing the gratuity, the respondents withheld an amount of Rs. 40,000/- and his pension was fixed on Rs. 3275/- on the basis of last pay drawn. The petitioner at the time of retirement has drawn Rs. 4430/- as last drawn pay. On enquiry, the petitioner came to know that respondents took the last pay drawn as Rs. 3275/- instead of 4430/- on the plea that vide order dated 24.4.1998, stepping up of the salary of the petitioner by the respondents with effect from 1.7.1996 was done without approval of the Administrative Department. On account of non approval by the Administrative Department, his pay for pensionary benefits was taken as last pay drawn i.e. Rs. 3275/-. 2. The respondents in their objections have stated that at the time of processing the pension case of the petitioner, it was found that the pay of the petitioner has not been regulated in accordance with law. The matter was referred to the Administrative Department for correction of the error, which is awaited. The case of petitioner was processed and finalized on the actual pay due to him at the time of retirement. This process was initiated immediately after his retirement. 3. I have heard learned counsel for the parties and perused the record. 4. In view of the stand taken by the respondents that prior approval of the Administrative Department for stepping up of the pay of petitioner was under consideration, the fact remains that, no active decision has been taken by the Administrative Department till date. 5. Be that as it may, order for stepping up of the pay in terms of Article 77-B in favour of an employee, when his juniors are getting higher scale of pay can be passed only with the prior approval of General Administrative Department. The case of the petitioner is that his juniors were given higher pay scale and he was ignored. Failure on the part of the respondents to obtain such prior approval would not render the order passed for stepping up of pay of an employee invalid, if he is otherwise entitled to get it. 6. The case of the petitioner is that his juniors were given higher pay scale and he was ignored. Failure on the part of the respondents to obtain such prior approval would not render the order passed for stepping up of pay of an employee invalid, if he is otherwise entitled to get it. 6. I am supported by the view of the Division Bench of this court in case, entitled, Accountant General vs. Kartar Chand and ors, reported 2008 (II) S.L.J, in which it is held that: "J&K Civil Service Regulations Article 77-B, Service Law; Recovery of pay: Order for stepping up of pay in terms of Article 77-B in favour of an employee, when his juniors are getting higher scale, of pay can be passed only with the prior approval of General Administration Department-failure to obtain such prior approval would not always render the order passed for stepping up the pay of an employee invalid if he is other entitled to get it-order for stepping up of pay issued which was never disputed till retirement of the concerned employee/petitioner but after his retirement his pension and gratuity withheld and recovery of excess/stepped up pay orders-such action held illegal." 7. Stepping up of the pay of the petitioner never remained in dispute till his retirement. However, his gratuity and stepping of pay was withheld awaiting prior approval of the Administrative Department. It is not in dispute that the matter has been referred to the Administrative Department for such approval, but the fact of the matter is that no decision is taken till date. It is also not in dispute that petitioner was entitled to receive stepping up of pay. The action of the respondents in withholding the post retiral benefits of the petitioner seems to be ex-facie arbitrary. 8. In view of the above, I allow this writ petition and direct the respondents to release the post retiral benefits to the petitioner within a period of three months from the date a copy of this order is served on them after taking into consideration the stepping up of pay and withheld gratuity. The petitioner shall also be entitled interest @ 9% per annum on the withheld amount from the date same is due to him. Disposed of.