Rajinder Kumar Gupta vs State of J&K and others

The petitioner was appointed as Junior Assistant on 03.10.1961 and allotted to the J&K PSC. He was promoted from time to time and finally

on 04.10.1984 promoted to the post of Section Officer. Further case of the petitioner is that he got first Insitu promotion on 01.01.1995 and

thereafter got promoted to the post of Administrative Officer on 13.11.1996 by the General Administration Department. The petitioner, however,

superannuated from the Department of Health and Medical Education on 31.10.2001. The pension case of the petitioner was sent to the

Accountant General, two months prior to his retirement In releasing the pensionary benefits to the petitioner, the Accountant General vide his

communication No. PNRII/200102/Sy461/85051 dated: 31.10.2001 (annexure ""A"" to the writ petition) intimated to the respondents that the

petitioner has already availed the benefit of three functional promotions and is not entitled to any Insitu promotionw.e.f 01.01.1995 to 31.10.2001.

As a consequence, an amount of Rs.40,000/ has been kept withheld for effecting recovery on account of payment of excess pay and allowances

w.e.f. 01.01.1995 to 31.10.2001. The General Administration Department on the receipt of the communication from the Accountant General,

however, worked out the recoverable amount at Rs.47,665/ on this account from the petitioner. Aggrieved by the recovery on account of the

excess amount of pay and allowances drawn on Insitu promotion which was not due to him has been challenged by filing this writ petition in

seeking the quashment of the letter No. PNRII/200102/Sy461/85051 dated 31.10.2001, by issuance of a writ of certiorari and further seeking a

direction in the nature of writ of mandamus directing the respondents to release the full pension and gratuity to the petitioner evaluated on the basis

of the last pay drawn.

Respondent Nos. 1 and 2 in their reply submitted that on the receipt of the impugned communication from the Accountant General to the effect

that the petitioner was not eligible for any Insitu promotion under SRO 14 of 15.01.1996 read with SRO 225 dated.04.07.1997 in view of the fact

that he had already availed three functional promotions prior to the inception of the scheme and under the said SRO, the respondents department

worked out Rs.40,000/ as recovery from the petitioner, under rules.

Whereas, respondent No. 3 in its reply submitted that since the petitioner has overdrawn the pay on account of one promotion under Time Bound

Promotion Programme which was not due to him, it was for the department to review the service record so as to ensure the correctness of the pay

and allowances drawn by the petitioner from time to time and to further ensure that the excess payment made are recovered. But, however, to

avoid financial hardships to the petitioner, other pensionary benefits were authorized separately by keeping an amount of Rs.40,000/ withheld from

the service gratuity.

Heard learned counsel appearing for the respective parties, perused the pleadings, and considered their rival contentions.

Mr. P.S.Dutta, learned counsel for the petitioner, at the threshold submitted that the higher pay scale as per SRO 14 was sanctioned in favour of

the petitioner by the government vide order dated 12.04.1996 and accordingly his pay was fixed with the next increment w.e.f. 01.01.1996. Mr.

Dutta further contented that after InSitu promotion, higher pay scale was consciously sanctioned by the government with due application of mind

and not on account of any misrepresentation made by the petitioner. In other words, according to Mr. Dutta, there was no hand of the petitioner in

such fixation of pay. The service book of the petitioner was checked and audited by the audit parties of the Accountant General on several

occasions but at no point of time wrong fixation of pay was pointed out or such any controversy was ever raised. That the petitioner being not at

fault either in sanctioning of the higher pay scale as per SRO 14 or in the fixation of the pay, no such recovery/deduction from the pension or

gratuity of the petitioner can be made. Mr. Dutta further referred to the provisions of Article 242 of the J&K CSR, which reads as under :

The term ""Average emoluments"" in respect of Government servants who retire on or after 1.4.1965, means the average calculated upon the

last one year of service:

Provided that in respect of Government servants who retire on or after 1.1.1976 the term ""Average Emoluments shall mean the average calculated

upon the last ten months of service

' Government 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 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 the 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 • twentyfour months preceding the date of retirement.

5, To further buttress his argument, Mr. Dutta relied upon the judgment of this Court in case entitled Swami Raj Sharma v. Accountant General,

Srinagar (SWP No. 3 64/1994). In that case also respondents ordered deduction from the gratuity amount of the petitioner on account of wrong

fixation of pay 14 years ago, at the time of release of the pension and gratuity. While holding that in the fixation of pay of the petitioner, there was

neither misrepresentation nor the petitioner had any hand in such fixation, the Court observed as under:

..On consideration of the matter, it is transpired that the petitioner's pay was fixed at the relevant time by. the then Divisional Commissioner and in

this he had no hand. The sole question that raised for consideration, therefore, is whether he could be faulted for this and whether any amount

found to have been drawn by him in excess on this account could be deducted from his gratuity about 14 years after the event without any notice

to him.

Petitioner has relied upon a number of judgments to urge that the action impugned is violative of the principles of natural justice and that the amount

was not recoverable from him after a prolonged delay of about 14 years. In face of the admitted position that the impugned order has been passed

at the back of the petitioner, there is no option but to accept his case and allow this writ petition. This is so for the reason that the amount in

question could not be deducted at the back of the petitioner and without following the principles of natural justice and that the same could not be

recovered from him after a delay of about 14 years. In the circumstances this petition is allowed and the respondents are directed to take steps to

release the disputed amount of Rs. 12,708/ to the petitioner within one month from the date or receipt of this order.

6, In this case, Mrs. Shaista Hakim, learned Dy. AG appearing for respondents nos. 1&2, did not dispute that the InSitu promotion and sanction

of higher pay scale as per SRO 14 was made by the government without any misrepresentation made by the petitioner but was an independent and

conscious act of the administrative department. Mrs. Hakim also did not dispute that even the audit carried out several times and accounts verified,

has not pointed out any such wrong fixation of pay of the petitioner or ever raised the controversy with regard to his eligibility to InSitu promotion.

Mrs. Hakim when taken through the record, she admitted that the order, by virtue of which InSitu promotion was sanctioned and higher pay scale

allowed to the petitioner under SRO 14, till date has not been reviewed and rescinded/ revoked nor is there any such plea in the objections.

7, If that be the position, how a recovery can be made from the petitioner on account of wrong fixation of pay and excess payment on account of

pay and allowances, is not understandable. That apart, Rule 55 of the J&K CCA Rules clearly contemplates that the authority passing an order

may review such order or that of its predecessor either suo moto or at the instance of the aggrieved party. Whereas Rule 57 of the above Rules

provides the period of limitation for an application for review shall be ninety days. The order having not been reviewed by the authority passing the

order of InSitu promotion and higher pay scale, the recovery, under such circumstances, of the amount paid to the petitioner on account of pay and

allowances could not be effected.

8, Again in case entitled 'Randhir Singh& ors v. State of Punjab and another ' reported in 1996 (6) SLR 391, wherein the respondents ordered the

recovery of the excess payment made due to fixation of pay by mistake, the Court held that the petitioner never misrepresented and in such event if

the recovery is effected, the petitioner will be put to considerable hardship. In the present case, the benefit of InSitu promotion and higher pay

scale was given by the government, even if by wrong construction, the petitioner can not be held to be at fault and the amount paid till date would

not be recovered from him.

9, Relying on the ratio of the aforesaid judgments, the inevitable conclusion reached is that the petition, in the facts and circumstances of the case, is

allowed. The impugned communication is set aside and the respondents are directed to release the full pension and gratuity, estimated and

evaluated, on the basis of the last pay drawn by the petitioner less by any amount already paid, if any, within one month from the date of the receipt

of this order. In case, the same is not done within the stipulated period, the interest at the rate of 9% per annum shall become payable and

deducted from the salary of the official on account of whose remissness the delay has occurred.

Writ petition is disposed of.