Maryam Banoo vs State and Others

Syed Bashir-ud-Din, J.—Petitioner's husband retire as S.P from the service of the Government of Jammu and Kashmir from VOK Wing on

30-09-1996. At the time of his retirement his basic pay was fixed at Rs. 11,625/-. The pay initially fixed in the time scale of pay after he gained

promotion as S.P. on 16-4-1992 was raised from time to time by the earned annual increments. He also got benefit of pay revision of 1998 and at

that time his case for retirel benefits includings gratuity, was under process in Accountant General's Office at Srinagar. The Accountant General

vide letter dated 8-11-1996 communicated to the Commissioner of Vigilance, that in case of this official, some mistake has been committed while

fixing his pay under SRO 1992 and his pay is not correctly fixed on 1-4-1990. However, the Vigilance Organisation in its reply dated 22-11-1996

(Annexure-PE) addressed a letter to Accountant General to say that the pay has been correctly fixed in case of the official on 1-4-1990 vide SRO

75/92 and no mistake whatsoever was committed in the matter. Thereafter, on 6-3-1998 parent department of the retired officer issued a LPA

indicating the Last pay drawn by the retiree as Rs. 11625/-. Instead of acting on and working out the retiral benefits and gratuity of the retiree on

these testimonials and his pensionary papers with Accountant General, the Accountant General on its own fixed the Last pay drawn as Rs.

11300/- and worked out the pension payment order and gratuity on that basis. This action of the Accountant General in denying the due pension

worked on the basis pay of Rs. 11300/- is under challenge in this petition. Out of the respondents, Respondents No. 1 and 2 the employers of the

retiree have in terms of communication on record and as conceded by the Government advocate Mr. G. Mustaffa, admitted the petitioner's claim

as above. However, despite repeated opportunities respondents have not filed counter nor contested the case even after the matter was at the post

admission stage after being admitted to formal hearing on 15-2-1999.

Mr. T.H Khawaja, Ld councel for petitioner submits that apart from the fact, that it is parent department which is to workout the Last Pay

Drawn for purposes of retiral benefits and not the Accountant General, the Accountant General is not within its powers to dig out a case that the

retiree's pay has been wrongly fixed over a decade back, at the time of pay revision of 1992. He submits that there is 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

retiree. There is considerable force to what the counsel submits and should for all practice purpose clintch the issue.

Article 242 of Jammu and Kashmir Civil Service Regulations VoI-I, while annuciating average emoluments for purposes of calculations of the

retiral benefits of an employee, who has retired on or after 1.1.1990. Provides under Government Instructions inserted vide F.D Notification

SRO-45 dated 28-1-1980.

Govemment Instruction:- 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 airthmetical calculation of the average emoluments but also a check of the

correctness of the emoluments which enter into the circulation. 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.

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 retiree on 30-9-1996, the date of retirement (shown as Rs. 11625/- in LPC Annexure PF) is wrong or incorrect. Moreso, when the employer,

Vigiliance Organisation of J&K Police, not only has issued the certificate but has verified and certified its correctness over again by communication

on record.

In the above view of the matter, the writ succeeds and revised pension payment order No. 301713 and Revised Gratuity Payment Order No.

0016554 are quashed. Respondents/competent authority is directed to issue fresh payment order with regard to re-worked Retirement Gratuity

and also to issue reworked Pension Payment Order in line with the observations made above.