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2010 DIGILAW 257 (JK)

Dharam Pal v. State

2010-05-04

MANSOOR AHMAD MIR

body2010
1. It is contended that the basic pay of petitioner was fixed at Rs.1720/- and accordingly he was drawing the pay with effect from 1.4.1987 to 30.9.2004. He retired on 30.11.2006. Thereafter communication dated 11.6.2007 came to be issued by respondent No.3 indicating that the pay of petitioner was to be fixed at the rate of Rs.1670/- on 1.4.1987 instead of Rs.1720/- in terms of SRO 370 and accordingly ordered for recovery of the excess amount paid to the petitioner. It is further contended that the action of respondents is illegal and without jurisdiction. Further the respondents cannot effect recovery after his retirement nor can change the rate of pension and other service benefits. 2. Learned counsel for petitioner stated at bar that this Court has already passed a judgment in identical matter in SWP No.1362/2006 and prays that the writ petition be allowed and respondents be directed not to effect recovery of excess amount of pay and be restrained from reducing the rate of pension of petitioner. 3. Mr. Basotra, learned AAG stated at bar that it is a fact that the matter is covered by the said judgment. However, Mrs. Mahajan, learned counsel for respondent No.3 stated that the writ petition be disposed of on merits. 4. The question involved in the writ petition is whether after retirement the respondent-department is within its power and jurisdiction to hold that the pay fixation was wrongly done and recovery is to be made and pension is to be fixed accordingly. The answer is negative for the following reasons. 5. The petitioner was retired as a Zonal Education Officer on 30.11.2006. His pay came to be fixed in terms of SRO 370 at the rate of Rs.1720/- with effect from 1.4.1987 till 30.9.2004. The fixation was made by the department and not by the petitioner and after a lapse of more than two decades the respondents have issued the impugned communication that too when the petitioner had already reached the age of superannuation. 6. A Division Bench of this Court has held that when the department had made the fixation wrongly, it cannot reduce the pay by holding that the pay fixation was wrongly done and that too at the fag end of the service of an employee. 6. A Division Bench of this Court has held that when the department had made the fixation wrongly, it cannot reduce the pay by holding that the pay fixation was wrongly done and that too at the fag end of the service of an employee. Keeping in view the law laid down in Perdhuman Krishan Khullar v. Union of India, 2003 (3) JKJ 423 (HC); 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, SLJ 2003 (1) 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, the respondents are not within their right to deduct the pension and effect recovery from the petitioner. They 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. 7. Viewed thus, the writ petition is allowed and the impugned communication dated 11.6.2007 issued by respondent No.3 is hereby quashed. The respondents are directed to release the pensionary benefits in favour of petitioner within six months from today. Disposed of along with all CMPs.