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2013 DIGILAW 461 (JK)

Devinder Kumar Gandotra v. State

2013-08-08

TASHI RABSTAN

body2013
1. This case is pending on the docket of this Court for the last about two years despite the fact that it relates to retiral benefits of the petitioner, who on attaining the age of superannuation came to be retired on 30.06.2008 from the post of Superintendent Engineer, Irrigation and Flood Control Department. Consequent thereto, his case for grant of pension was recommended by respondent no.4 to respondent no.2. It is contended that after a period of more than four months of retirement of the petitioner, respondent no.3 by way of communication dated 17.11.2008 withheld the amount of gratuity of the petitioner on the ground of excess pay drawn by the petitioner. The petitioner being aggrieved has filed the instant petition on the following grounds: - (i) That impugned PPO/FPPO dated 15.10.2008 (Annexure-A), CPO dated 15.10.2008 (Annexure-B), Communication dated 17.11.2008 (Annexure-F), communication dated 07.08.2009 (Annexure-J) and communication dated 12.08.2009 (Annexure-L) issued by respondents 2,3 and 5 are wrong and have been issued in violation of Article 242 of the J&K Civil Service Regulations. (ii) That the pay fixed in the year 1979-80 cannot be termed as wrong after about three decades and that too after the retirement of the petitioner, especially when he was not a party to such fixation. (iii) That pension has to be fixed on the basis of last pay drawn, therefore, the respondents are under legal obligation to fix the same accordingly. (iv) That in similar set of circumstances, the colleagues/Officers of the petitioner, who were promoted and regularized under one and the same Government orders have been granted full pension and other pensionary benefits in terms of the last pay drawn by them without any such objection having been raised by the respondents. (v) That the amount of gratuity is the personal hard saving of the petitioner and no recovery can be effected therefrom as has been threatened by the respondents. (vi) That the action of the respondents is illegal and without jurisdiction as the respondents cannot effect recovery after his retirement nor can reduce the rate of pension of the petitioner. 3. Respondents have filed the objections contending therein that the amount of gratuity was kept/withheld due to wrong fixation of pay of the petitioner. It is contended that the petitioner was promoted as Incharge Asstt. 3. Respondents have filed the objections contending therein that the amount of gratuity was kept/withheld due to wrong fixation of pay of the petitioner. It is contended that the petitioner was promoted as Incharge Asstt. Engineer vide Order No. 15.02.1979 and came to be regularized on the said post w.e.f. 01.12.1980, but, his pay came to be fixed w.e.f. 15.02.1979, though it was to be fixed from 01.12.1980, the date when he was regularized against the post of Assistant Engineer. Therefore, the amount of gratuity of the petitioner has been withheld and would be released only after his pay is re-fixed. 4. I have heard learned counsel for the parties and perused the record. 5. Learned counsel for the petitioner stated at the Bar that this Court has already in identical matters viz. SWP No. 1362/2006, SWP No. 1128/2010 and SWP No. 1129/2010 directed the respondents not to effect recovery of excess amount. He, accordingly, prayed that the same relief may be granted to the petitioner as well. 6. The moot question for consideration is as to whether after retirement, the respondents could withhold the amount of gratuity of the petitioner and effect recovery on the ground that his pay had been fixed wrongly. The answer has to be negative for the following reasons. 7. The petitioner on attaining the age of superannuation came to be retired on 30.06.2008 from Irrigation and Flood Control Department. Consequent thereto, his case for grant of pension was recommended by respondent no.4 to respondent no.2, but, after a period of more than four months of his retirement, respondent no.3 withheld the amount of gratuity of the petitioner on the ground of excess pay drawn by him. 8. It is nowhere averred that the writ petitioner has fixed the pay on his own or he had any role to play while making the pay fixation. The pay was fixed at least about three decades ago, thus, the respondents are not within their powers to withheld the amount of gratuity and reduce the last pay drawn by the petitioner. 9. Article 242 of the Jammu and Kashmir Civil Service Regulations governs the subject and as per its mandate, the average emoluments in respect of a Government servant are to be taken into consideration on the basis of last ten months pay and pension and other benefits are to be fixed accordingly. 10. 9. Article 242 of the Jammu and Kashmir Civil Service Regulations governs the subject and as per its mandate, the average emoluments in respect of a Government servant are to be taken into consideration on the basis of last ten months pay and pension and other benefits are to be fixed accordingly. 10. The pay of the petitioner came to be fixed in the year 1979-80 and after a lapse of about three decades, respondent No. 3 issued impugned communications by which respondent No. 3 has withheld the amount of gratuity of the petitioner and directed for effecting recovery of excess amount. 11. The question has already been considered by this Court in number of cases. 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. 12. 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 03.11.2006, Bhushan Kumar v. Union of India, SWP No. 1065/2006 decided on 05.04.2007, Maryam Bano v. State 2003 SLJ 188 : 2003 (1) JKJ HC-783, State v. Mohd Aziz Khan, LPA(OW)No. 200/2002, decided on 21.08.2002 and Mahmood Beigh v. Union of India, SWP No. 1362/2006 decided on 15.11.2008, the respondents are not within their rights to deduct the pension and effect recovery from the petitioner. They have to fix his pension on the basis of the salary last drawn by him and calculate the pensionary benefits accordingly. 13. 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. 14. Viewed thus, this writ petition is allowed and impugned communications are hereby quashed. The respondents are directed to fix and settle the pension case of the petitioner on the basis of last pay drawn by him within a period of two months from today. Respondents are also directed to release the withheld the amount of gratuity in favour of the petitioner within the aforesaid period. In case, same is not done within the aforesaid period, the interest at the rate of 9% p.a. shall be payable to the petitioner. 15. Respondents are also directed to release the withheld the amount of gratuity in favour of the petitioner within the aforesaid period. In case, same is not done within the aforesaid period, the interest at the rate of 9% p.a. shall be payable to the petitioner. 15. Disposed of along with connected CMA(s).