Kulbushan Singh vs State & Ors

Petitioner was appointed as a teacher in the School Education Department in the year 1982 and superannuated after attaining the age of superannuation on 30.11.2013. The State Government revised the pay of the employees and issued SRO 75 of 1992 vide which certain incentives/increments were granted in favour of the employees who were having higher qualification in the subject. Thus, the teachers who were having post graduation were given 5 advance increments in terms of SRO 75 of 1992 by implementation of the said SRO, the petitioner was also given the same benefit w.e.f. 1992. The benefit as accorded by said SRO was withdrawn and a Circular to this effect was issued on 14.10.1998. Aggrieved of the withdrawal of the benefit as accorded under the SRO, a number of writ petitions came to be filed against the withdrawal the petitioner also aggrieved of the same filed SWP No. 81/99 challenging the aforementioned circular. While deciding another writ petition, writ petition bearing SWP No. 833/99 titled „Uttar Kumar Khajuria v. State & others‟ was decided and it was held that the petitioners were entitled to the benefit provided under SRO 75 of 1992 and they cannot be taken away and shall remain in force.

Grievance of the petitioner is that on attaining the age of retirement, the case of the petitioner was processed for settling his pension claims. Respondent No.4 raised objections about the fixation of the pay of the petitioner w.e.f. 01.04.1987 in terms of SRO 75 of 1992. Respondent No.4 vide his communication dated 07.02.2014 stated that the benefit of higher qualification has already been stopped and the pay of the petitioner be now revised w.e.f. 01.04.1987 to settle the claims of the petitioner though respondent No.3 in reply informed the respondent No.4 that the benefit in terms of SRO 75 of 1992 was protected by the Hon‟ble Court. Respondent No.4, however, vide communication dated 03.04.2014 while settling the pensionary claim of the petitioner has withheld the gratuity amount of Rs.1,45,749/- on the ground of excess pay drawn w.e.f. 01.04.1987.

Petitioner is aggrieved of withholding of his gratuity to the tune of Rs.1,45,749/-, which is according to him is arbitrary and illegal, since the benefit which was accorded to the petitioner for possessing higher qualification was under SRO 75 of 1992 was protected by this Hon‟ble Court in case of the petitioner in SWP No. 81/99.

It is also submitted that in terms of Rule 242 of the Jammu and Kashmir Civil Service Regulations and the Government instructions, which govern the service condition of the employee of the State Government, which reads as under:

"242...Government Instructions.- With effect from 1st January, 1976 the average emoluments are determined with reference to emoluments drawn during the last ten complete months. This work involves not merely an arithmetical calculation of the average emoluments but also a check of the correctness of the emoluments which enter into the calculation. The correctness of the emoluments on the first date of the ten months period would naturally depend on the correctness of the emoluments prior to this date. However, any such check of the correctness of past emoluments, whether in the office preparing the pension papers or latter in the office responsible for issuing the pension payment order, should not become an occasion for an extensive examination going back into the distant past, the check should be the minimum which is absolutely necessary and it should in any case not go back to a period earlier than a maximum of twenty four months preceding the date of retirement..."

Thus, in terms of the Rule 242 of the Jammu and Kashmir Civil Service Regulations, it is specifically provided that the respondents cannot go beyond twenty four months from the date of the superannuation of the petitioner to check the correctness of past emoluments, and in case it is absolutely necessary, than it should not be in any case beyond the period earlier than a maximum of twenty four months preceding the date of retirement.

In case of Maryam Bano v. State & ors. SLJ 2003 (1), the Hon‟ble Court, while considering Article 242 of the Jammu and Kashmir Civil Service Regulations, held as under:

"3...Obviously there is absolute bar to check the correctness or otherwise of the past emoluments beyond the period of 24 months preceding the date of retirement. This apart, there is nothing on record (as the respondents have not come up with any case) to show that the basic pay drawn by the retire on 30.09.1996, the date of retirement (shown as Rs.11,625/- in LPC Annexure-PF) is wrong or incorrect. Moreso, when the employer, Vigilance Organization of J&K Police, not only has issued the certificate but has verified and certified its correctness over again by communication on record."

In case of Sant Singh v. State & others, 2011 (3) JKJ 519 [HC], it has been held as under:

"11. In the instant case, admittedly petitioner has retired in the year 1998. The objection raised vis-à-vis incorrect fixation from the year 1987 is impermissible to be looked into by respondent No.5 in view of the clear mandate of the Rule 242 of J&K C.S.R, when the petitioner in any way has not been instrumental in getting his pay fixed, as a matter of course pay of the petitioner has been fixed from the year 1987. Now at the time of his retirement, petitioner cannot be permitted to be subjected to undue hardship. It was duty of the authorities concerned to have got periodically checked the fixation of payments us made to the petitioner. Even now, after twelve years of retirement, the petitioner is clamouring for release of withheld amount and proper fixation of his pension."

Therefore, in terms of the said Article and also in terms of the judgments of this Court, respondent No.4 could not examine the correctness of the emoluments which had already been upheld by this Court nor was competent to dig-out a case that the retire‟s pay has been wrongly fixed over a decade back, at the time of pay revision. In Maryam Bano's case (supra), the Hon‟ble Court has said that "there is an express bar for the Accountant General to go back to a period beyond two years from the date of retirement to check and correct the past emoluments drawn by the retire." That apart all the increments granted to the petitioner under SRO 75 and the same being upheld by this court, there was no occasion to withhold the gratuity of the petitioner.

Thus, in view of the government instructions to Article 242 of the Jammu and Kashmir Civil Service Regulations and the law laid down in Maryam Bano v. State & ors, this petition allowed, respondent No.4 is directed to release the withholding amount of gratuity of the petitioner to the tune of Rs. 1,45,749/-along with 6% interest from the date of withholding and till its final realization.