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J&K High Court · body

2010 DIGILAW 615 (JK)

Mushtaq Ahmed v. State

2010-12-11

Mansoor Ahmad Mir

body2010
1. It is contended that petitioner came to be engaged as `Daily wager’ on 1st of November’ 1971, was appointed as attendant in the pay scale of Rs. 180-250. At the time of superannuation his pay scale was Rs. 5000-8000 (pre-revised) with effect from 01st of January" 2006 and revised pay band of Rs. 9300-34800. Thereafter, communication dated 1st of April’ 2010 issued by respondent no.6 indicate that one step higher pay scale granted in favour of the petitioner was in contravention of Rule 17-13 (1) of J&K Financial Code Volume-l and directed to recover 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 SWP No. 1128/2010 and prays that this 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. Thakur and Ms. Mahajan, learned counsel for respondents argued that the writ petition is not maintainable for the reasons that this Court cannot direct the respondents to pass orders in breach of the rules. In support of the argument they cited a case State of West Bengal v. Subhas Kumar Chatterjee, AIR 2010 SC 2927 . 4. The question involved in the writ petition is whether after retirement the respondents-department is within its power and jurisdiction to hold that the pay fixation was wrongly made and recovery is to be effected and pension is to be fixed accordingly. The answer is negative for the following reasons. 5. The pay of the petitioner came to be fixed vide order No. CEJ/DPC-1/581 dated 27th of August’ 2002 in pursuance to the decision of 62nd Departmental Promotion Committee and after a lapse of more than eight years issued the impugned communication that too when the petitioner has reached the age of superannuation. 6. A Division Bench of this Court has held that when the department has 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 service of an employee. 6. A Division Bench of this Court has held that when the department has 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 service of an employee. Keeping in view the law laid down in Perdhuman Krishan Khullar v. Union of India, 2003 (3) JKJ 423 [HC]; Mulkh Raj v. Union of India, SWP No. 341/2003 decided on 3rd of November’ 2006; Bhushan Kumar v. Union of India, SWP No. 1065/2006 decided on 5th of April’ 2007; Maryam Bano v. State, SLJ 2003 (1) 188; State v. Mohd Aziz Khan, LPA (OW) No. 200/2002, decided on 21st of August’ 2002 and Mahmood Beigh v. Union of India, SWP No. 1362/2006 decided on 15th of November’ 2008, the respondents are not within their rights 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 calculate the pensionary benefits accordingly. The Apex Court in case titled Union of India v. Jagdish Pandey, Civil Appeal No. 365 of 2007, decided on 8th of July’ 2010 has also laid down the same principle. 7. Keeping in view the discussion made herein read with the judgment (supra), the judgment relied upon by the learned counsel for respondents is not applicable to the instant case for the simple reason that in the said case the employees had prayed for fixation of their pay and grade. The Government raised the plea that the said writ petition cannot be granted because the same is in breach of the rules and the Apex Court held that the Courts cannot direct the department/Government/State to place police employees in a grade which is not in accordance with rules. 8. Viewed thus, the writ petition is allowed and the impugned communication dated 1st of April’ 2010 issued by the respondent no.5 is hereby quashed. The respondents are directed to release the pensionary benefits in favour of the petitioner within a period of six months from today. 9. Disposed of along with all CMPs.