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2016 DIGILAW 1697 (GUJ)

Savitakumari Janhvi Mishra v. Union of India

2016-08-09

A.S.SUPEHIA, M.R.SHAH

body2016
JUDGMENT : M.R. Shah, J. 1. By way of the present petition under Article 226 of the Constitution of India, the petitioner has, as such, prayed for an appropriate writ, direction and order quashing and setting aside the impugned order/letter No. CPPC/04465/78 dated 03.06.2016 by the Assistant General Manager, State Bank of India asking the petitioner to deposit overpaid pension amount of Rs. 13,69,767/- within 7 days as well as impugned action on the part of the authority for effecting recovery of amount from the account of the petitioner. The petitioner has also prayed to quash and set aside the impugned order/letter No. CPPC/E-2427/87 dated 7.6.2016, by which, the Assistant General, State of Bank of India has informed Assistant Controller, office of the Principle Controller of Defence Accounts (Pensions) that amount of Rs. 2,73,911/- being the over payment of pension for the period from 07.09.2014 to 31.05.2016 shall be recovered from the petitioner pension by fixing monthly installments of Rs. 7400/- per month being 1/3rd of the monthly pension payable to her w.e.f. June 2016. 2. The facts leading to the present petition in nutshell are as under: 2.1. That the petitioner is widow of an ex-army officer. That her husband worked for the nation while serving with the Indian Army and worked on different fraught/places during the war with the Pakistan 17.06.1995 to 25.01.1966. That on attaining the age of superannuation, husband of the petitioner was relieved from the service w.e.f. 31.07.1989. According to the petitioner, while rendering the service in NCC and by keeping in mind the meritorious service rendered by the husband of the petitioner, he was promoted in the Rank of Major and was also given the selection grade of Lieutenant - Colonel. That he retired as Lieutenant Colonel on attaining the age of superannuation on 30.07.1989 from 10 Punjab Battalion NCC Ludhiana, Punjab as Officer Commanding (OC). That thereafter, the husband of the petitioner and the petitioner received the pension regularly till he passed away on 06.09.2014. That till the demise of the husband of the petitioner, he was receiving the regular pensionary benefits as per his entitlement. Thus, for almost a period of 25 years after the retirement, the authority paid the regular pension to him. It is the case of the petitioner that after the demise of her husband, she was not receiving the adequate amount towards family pension. Thus, for almost a period of 25 years after the retirement, the authority paid the regular pension to him. It is the case of the petitioner that after the demise of her husband, she was not receiving the adequate amount towards family pension. Therefore, she approached the District Ex- Servicemen Association of Bhavnagar who started correspondence with the concerned department and a request was made to remit actual amount of family pension of the petitioner and to issue PPO as per 6th Pay Commission. It is the case of the petitioner that even thereafter also there were number of correspondences were made with the consent department including SBI, Branch at Bhavnagar whereby a request was made to carry out necessary check and rectify and also make payment of arrears if payable. According to the petitioner, all of sudden vide communication dated 3.6.2016 and 7.6.2016, which is corresponding between the State Bank of India and Assistant Controller, Office of the Principle Controller of Defence Accounts (Pensions), instead of refusing the family pension as requested by her, the petitioner is informed that her family pension is revised by Rs. 9967/- w.e.f. 07.09.2014 and therefore, there is over payment of pension of Rs. 2,73,911/- for the period from 07.09.2014 to 31.05.2016 which is liable to be recovered from her pension by fixing monthly installments. 2.2. Feeling and aggrieved and dissatisfied with the impugned communication dated 07.06.2016, by which, the petitioner is communicated the revision of his family pension of Rs. 9967/- per month and consequently the order of recovery being the alleged overpayment of pension, the petitioner has preferred present Special Civil Application under Article 226 of the Constitution of India. 3. Shri Siraj Gori, learned advocate for petitioner has vehemently submitted that as such no order has been communicated to the petitioner by the competent authority revising his family pension at Rs. 9967/-. It is submitted that if at all there is any order passed by the competent authority revising her pension, the same is in breach of principles of natural of justice as before revising her pension at Rs. 9967/- per month w.e.f 07.09.2014, no opportunity of being heard to be given to the petitioner. 9967/-. It is submitted that if at all there is any order passed by the competent authority revising her pension, the same is in breach of principles of natural of justice as before revising her pension at Rs. 9967/- per month w.e.f 07.09.2014, no opportunity of being heard to be given to the petitioner. It is submitted that on the contrary, the petitioner as such requested to revise her pay and to increase the pension and increase the family pension and instead the family pension is decreased and it is revised at Rs. 9967/- and that too without giving any opportunity to the petitioner. 3.1. It is submitted that as such husband of the petitioner continuously received the pension regularly till his demise and at no point of time any grievance was raised with respect to the excess pension. 3.2. It is further submitted by Shri Gori, learned advocate for the petitioner that even otherwise there cannot be any recovery of over payment pension of Rs. 2,73,911/- for the period from 07.09.2014 to 31.05.2016 as per the communication dated 07.06.2016 as the petitioner was not at all responsible for such a mistake if any. It is submitted that the petitioner is the widow of Ex-Army man and she depends only upon the family pension and therefore, if aforesaid amount of Rs. 2,73,911/- is recovered from the petitioner may be by installment of Rs. 7400/- per month, it will be very difficulty to her to maintain herself and it will cause undue hardships to her. Therefore, relying upon the decision of the Hon'ble Supreme Court in the case of State of Punjab and others v. Rafiq Masih etc. reported in AIR 2015 SC 696 , it is requested to quash and set aside order of recovery. 4. Ms. Trusha Patel, learned advocate has appeared on behalf of the department on the copy being served upon her being counsel for Central Government. The concerned respondents are served through RPAD. Ms. Patel, learned advocate for the Department has stated that she has no further instruction in the matter from the department and she tried her best to get instruction but all her efforts have failed. The concerned respondents are served through RPAD. Ms. Patel, learned advocate for the Department has stated that she has no further instruction in the matter from the department and she tried her best to get instruction but all her efforts have failed. However, from the material on record, more particularly, communication dated 30.05.2016 of Senior Accounts Officer (P) addressed to the Chief Manager, CPPC, State Bank of India, it is submitted that the family pension was required to be revised and it was fixed at Rs. 9967/- per month w.e.f. 7.9.2014, however though she was not entitled to family pension at Rs. 15759/- per month as her husband was retired as NCC Civilian Officer, she was not entitled to family pension. It is submitted that therefore, in the facts and circumstances of the case when it was found that there was over payment of family pension during the period in question and thereafter when the order of recovery was made, the same was not required to be interfered with by this Court. 4.1. Now, so far as decision of the Hon'ble Supreme Court in the case of Rafiq Mashi (supra) relied upon by the learned advocate for the petitioner is concerned, Ms. Patel, learned advocate for the respondent department has submitted that in the subsequent decision in the case of High Court of Punjah and Haryana & Ors v. Jagdev Singh rendered in Civil Appeal No. 3500 of 2006 the Hon'ble Supreme Court has considered the aforesaid decision and has clarified in para 11 that the aforesaid decision shall not be applicable in all case where order of recovery is made. Making above submissions, it is requested to dismiss the present petition. 5. In reply, Shri Gori, learned advocate for the petitioner has submitted that as such decision of the Hon'ble Supreme Court in the case of Raifq Mashi (supra) has been accepted by the department subsequently and by office memorandum dated 02.03.2016 taking note of the aforesaid decision, it is observed that there shall not be any recovery of the excess payment in case concerned employee is not at fault and/or mistake is not attributable to the concerned employee. 6. Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that the petitioner is a widow of Ex-Army Man who fought for the nation. 6. Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that the petitioner is a widow of Ex-Army Man who fought for the nation. That till he died, he get regular pension and at no point of time any grievance was made with respect to any excess payment of pension and/or with respect to the amount of pension. After his demise, the petitioner being widow was not getting the family pension according to the Rules and therefore, as such she made a request to revise the pension and to grant her pension regularly and as per the Rules prevailing. However, instead of accepting the request made by the petitioner, unilateral decision was taken by the pension department to revise the pension of Rs. 9967/- per month w.e.f. 07.09.2014. It is required to be noted that till date the petitioner was already getting family pension at the rate of Rs. 15,759/-. However, thereafter ex-parte decision has been taken to revise the pension to Rs. 9967/- per month and consequently making recovery. At this stage, it is required to be noted that any decision on revision of family pension of Rs. 9967/- per month has bee communicated to the petitioner. The petitioner is communicated the said decision by the State Bank of India by impugned communication that her pension is revised to Rs. 9967/- per month and therefore there is a over payment of family pension and therefore, the same shall be recovered from her family pension in future by equal monthly installments of Rs. 7400/-. Under the circumstances, when the decision has been taken to revise the pension to Rs. 9967/- per month without giving any opportunity to the petitioner, the same cannot be sustained and same deserves to be quashed and set aside only on the ground that the same is in breach of principles of natural justice. 7. Even otherwise, considering the decision of the Hon'ble Supreme Court in the case of Raifq Mashi (supra) there shall not be any excess payment of family pension as per the impugned communication by the SBI and/or even by the appropriate authority (which is not communicated to the petitioner). 7. Even otherwise, considering the decision of the Hon'ble Supreme Court in the case of Raifq Mashi (supra) there shall not be any excess payment of family pension as per the impugned communication by the SBI and/or even by the appropriate authority (which is not communicated to the petitioner). It is not the case on behalf of the respondent authority that for over payment of family pension any misrepresentation was either made by the petitioner or any mistake, if any, can be said to be attributable to the petitioner. The petitioner is widow of Ex-Army man and is surviving on the family pension and therefore, to make recovery of excess amount of pension, if any, would be too harsh. At this stage, it is required to be noted that as such the State Bank of India on the basis of some instruction by the concerned department had already recovered Rs. 13,69,767/- from the deposit account of the petitioner and her son, which also cannot be sustained. Over and above the aforesaid, a further sum of Rs. 2,73,911/- is sought to be recovered by monthly installments of Rs. 7400/- per month from her family pension. In the case of Raifq Mashi (supra) in para 11, the Hon'ble Supreme Court has observed and held as under: "11. For the above determination, we shall refer to some precedents of this Court wherein the question of recovery of the excess amount paid to employees, came up for consideration, and this Court disallowed the same. These are situations, in which High Courts all over the country, repeatedly and regularly set aside orders of recovery made on the expressed parameters. (i) Reference may first of all be made to the decision in Syed Abdul Qadir v. State of Bihar, (2009) 3 SCC 475 , wherein this Court recorded the following observation in paragraph 58: "58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram v. State of Haryana, 1995 Supp. (1) SCC 18, Shyam Babu Verma v. Union of India, (1994) 2 SCC 521 , Union of India v. M. Bhaskar, (1996) 4 SCC 416 , V. Ganga Ram v. Director, (1997) 6 SCC 139 , Col. B.J. Akkara (Retd.) v. Govt. of India, (2006) 11 SCC 709 ,Purshottam Lal Das v. State of Bihar, (2006) 11 SCC 492 , Punjab National Bank v. Manjeet Singh,, (2006) 8 SCC 647 and Bihar SEB v. Bijay Bahadur, (2000) 10 SCC 99 ." (emphasis is ours) First and foremost, it is pertinent to note, that this Court in its judgment in Syed Abdul Qadir's case (supra) recognized, that the issue of recovery revolved on the action being iniquitous. Dealing with the subject of the action being iniquitous, it was sought to be concluded, that when the excess unauthorised payment is detected within a short period of time, it would be open for the employer to recover the same. Conversely, if the payment had been made for a long duration of time, it would be iniquitous to make any recovery. Interference because an action is iniquitous, must really be perceived as, interference because the action is arbitrary. All arbitrary actions are truly, actions in violation of Article 14 of the Constitution of India. The logic of the action in the instant situation, is iniquitous, or arbitrary, or violative of Article 14 of the Constitution of India, because it would be almost impossible for an employee to bear the financial burden, of a refund of payment received wrongfully for a long span of time. The logic of the action in the instant situation, is iniquitous, or arbitrary, or violative of Article 14 of the Constitution of India, because it would be almost impossible for an employee to bear the financial burden, of a refund of payment received wrongfully for a long span of time. It is apparent, that a government employee is primarily dependent on his wages, and if a deduction is to be made from his/her wages, it should not be a deduction which would make it difficult for the employee to provide for the needs of his family. Besides food, clothing and shelter, an employee has to cater, not only to the education needs of those dependent upon him, but also their medical requirements, and a variety of sundry expenses. Based on the above consideration, we are of the view, that if the mistake of making a wrongful payment is detected within five years, it would be open to the employer to recover the same. However, if the payment is made for a period in excess of five years, even though it would be open to the employer to correct the mistake, it would be extremely iniquitous and arbitrary to seek a refund of the payments mistakenly made to the employee. In this context, reference may also be made to the decision rendered by this Court in Shyam Babu Verma v. Union of India, (1994) 2 SCC 521 , wherein this Court observed as under:- "11. Although we have held that the petitioners were entitled only to the pay scale of Rs. 330-480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs. 330-560 but as they have received the scale of Rs. 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. 330-560 but as they have received the scale of Rs. 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same." (emphasis is ours) It is apparent, that in Shyam Babu Verma's case (supra), the higher pay-scale commenced to be paid erroneously in 1973. The same was sought to be recovered in 1984, i.e., after a period of 11 years. In the aforesaid circumstances, this Court felt that the recovery after several years of the implementation of the pay-scale would not be just and proper. We therefore hereby hold, recovery of excess payments discovered after five years would be iniquitous and arbitrary, and as such, violative of Article 14 of the Constitution of India. (ii) Examining a similar proposition, this Court in Col. B.J. Akkara v. Government of India, (2006) 11 SCC 709 , observed as under:- "28. Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery." (emphasis is ours) A perusal of the aforesaid observations made by this Court in Col. B.J. Akkara's case (supra) reveals a reiteration of the legal position recorded in the earlier judgments rendered by this Court, inasmuch as, it was again affirmed, that the right to recover would be sustainable so long as the same was not iniquitous or arbitrary. In the observation extracted above, this Court also recorded, that recovery from employees in lower rung of service, would result in extreme hardship to them. The apparent explanation for the aforesaid conclusion is, that employees in lower rung of service would spend their entire earnings in the upkeep and welfare of their family, and if such excess payment is allowed to be recovered from them, it would cause them far more hardship, than the reciprocal gains to the employer. We are therefore satisfied in concluding, that such recovery from employees belonging to the lower rungs (i.e., Class-III and Class-IV - sometimes denoted as Group 'C' and Group 'D') of service, should not be subjected to the ordeal of any recovery, even though they were beneficiaries of receiving higher emoluments, than were due to them. Such recovery would be iniquitous and arbitrary and therefore would also breach the mandate contained in Article 14 of the Constitution of India. (iii) This Court in Syed Abdul Qadir v. State of Bihar (supra) held as follows: "59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter- affidavit, admitted that it was a bona fide mistake on their part. It would not be out of place to mention here that the Finance Department had, in its counter- affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made." (emphasis is ours) Premised on the legal proposition considered above, namely, whether on the touchstone of equity and arbitrariness, the extract of the judgment reproduced above, culls out yet another consideration, which would make the process of recovery iniquitous and arbitrary. It is apparent from the conclusions drawn in Syed Abdul Qadir's case (supra), that recovery of excess payments, made from employees who have retired from service, or are close to their retirement, would entail extremely harsh consequences outweighing the monetary gains by the employer. It cannot be forgotten, that a retired employee or an employee about to retire, is a class apart from those who have sufficient service to their credit, before their retirement. Needless to mention, that at retirement, an employee is past his youth, his needs are far in excess of what they were when he was younger. Despite that, his earnings have substantially dwindled (or would substantially be reduced on his retirement). Keeping the aforesaid circumstances in mind, we are satisfied that recovery would be iniquitous and arbitrary, if it is sought to be made after the date of retirement, or soon before retirement. A period within one year from the date of superannuation, in our considered view, should be accepted as the period during which the recovery should be treated as iniquitous. A period within one year from the date of superannuation, in our considered view, should be accepted as the period during which the recovery should be treated as iniquitous. Therefore, it would be justified to treat an order of recovery, on account of wrongful payment made to an employee, as arbitrary, if the recovery is sought to be made after the employee's retirement, or within one year of the date of his retirement on superannuation. (iv) Last of all, reference may be made to the decision in Sahib Ram Verma v. Union of India, (1995) Supp. 1 SCC 18, wherein it was concluded as under: "4. Mr. Prem Malhotra, learned counsel for the appellant, contended that the previous scale of Rs. 220-550 to which the appellant was entitled became Rs. 700-1600 since the appellant had been granted that scale of pay in relaxation of the educational qualification. The High Court was, therefore, not right in dismissing the writ petition. We do not find any force in this contention. It is seen that the Government in consultation with the University Grants Commission had revised the pay scale of a Librarian working in the colleges to Rs. 700-1600 but they insisted upon the minimum educational qualification of first or second class M.A., M.Sc., M.Com. plus a first or second class B.Lib. Science or a Diploma in Library Science. The relaxation given was only as regards obtaining first or second class in the prescribed educational qualification but not relaxation in the educational qualification itself. 5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs." (emphasis is ours) It would be pertinent to mention, that Librarians were equated with Lecturers, for the grant of the pay scale of Rs. 700-1600. The above pay parity would extend to Librarians, subject to the condition that they possessed the prescribed minimum educational qualification (first or second class M.A., M.Sc., M.Com. plus a first or second class B.Lib. Science or a Diploma in Library Science, the degree of M.Lib. Science being a preferential qualification). For those Librarians appointed prior to 3.12.1972, the educational qualifications were relaxed. In Sahib Ram Verma's case (supra), a mistake was committed by wrongly extending to the appellants the revised pay scale, by relaxing the prescribed educational qualifications, even though the concerned appellants were ineligible for the same. The concerned appellants were held not eligible for the higher scale, by applying the principle of "equal pay for equal work". This Court, in the above circumstances, did not allow the recovery of the excess payment. This was apparently done because this Court felt that the employees were entitled to wages, for the post against which they had discharged their duties. In the above view of the matter, we are of the opinion, that it would be iniquitous and arbitrary for an employer to require an employee to refund the wages of a higher post, against which he had wrongfully been permitted to work, though he should have rightfully been required to work against an inferior post." 8. Even considering the aforesaid decision and accepting the same, the department has issued the office memorandum dated 02.03.2016 and has taken a decision that excess amount may not recovered if the concerned employee is not at fault for such a mistake if any. 9. Even considering the aforesaid decision and accepting the same, the department has issued the office memorandum dated 02.03.2016 and has taken a decision that excess amount may not recovered if the concerned employee is not at fault for such a mistake if any. 9. Now, so far as reliance placed upon the decision of the Hon'ble Supreme Court in the case of Jagdev Singh (supra) relying upon by the learned advocate for the respondent department is concerned, on facts the said decision shall not be applicable to the facts of the case on hand and case before the Hon'ble Supreme Court that it was found that the office to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. Such is not case here. From the correspondence between Senior Accounts Officer (P) and the Branch Manager, SBI, it appears that according to the pension department as the husband of the petitioner has retired as NCC Civilian Officer, hence she is not entitled to Family Pension at Rs. 15759/- per month and she will be entitled to reduced family pension as Civilian. However, it is required to be noted that from 1989 till 2014, the department never questioned the status of the husband of the petitioner and never treated him as a Civilian and as such paid the pension as if he is retired as a Army Man and now under the guise of revision of family pension, the amount of pension which was paid to the husband of the petitioner who has died in the year 2014 is sought to be recovered from 1989 thereafter it can certainly be termed as most arbitrary. Under the circumstances, recovery of Rs. 13,69,767/- and the further recovery of Rs. 2,73,911/- cannot be sustained. 10. Consequently, the SBI/concerned department who has already recovered any amount, more particularly, Rs. 13,69,767/- or any other amount pursuant to the impugned communication are directed to refund the same to the petitioner forthwith but not later than four weeks from the date of present order. 11. In view of the above and for the reasons stated above, present petition succeeds. Consequently, the SBI/concerned department who has already recovered any amount, more particularly, Rs. 13,69,767/- or any other amount pursuant to the impugned communication are directed to refund the same to the petitioner forthwith but not later than four weeks from the date of present order. 11. In view of the above and for the reasons stated above, present petition succeeds. The impugned order/letter No. CPPC/04465/78 dated 03.06.2016 by the Assistant General Manager, State Bank of India asking the petitioner to deposit overpaid pension within 7 days as well as impugned action on the part of the authority for effecting recovery of amount from the account of the petitioner is hereby quashed and set aside and recovery made by the concerned bank and/or concerned department of Rs. 13,69,767/- from the fixed deposit account of the petitioner and/or her son and the further recovery of Rs. 2,73,911/- sought by the impugned communication is hereby quashed and set aside. The decision of the Pension Department in revising the family pension of the petitioner at Rs. 9967/- from Rs. 15759/- is hereby quashed and set aside as the same is in breach of principles of natural justice and even otherwise the same is quashed and set aside on the ground that till the husband of the petitioner died her status as civilian was not considered and he was treated as Army Man. Now, on allowing the present petition, now petitioner be returned the amount already received either by SBI and/or Department within a period of six weeks from today. Petitioner be also paid the family pension/pension regularly as and when due at Rs. 15759/- per month as was being paid earlier prior to the impugned order/communication. Rule is made absolute to the aforesaid extent. No costs.