Sant Singh vs State and Others

Mohammad Yaqoob Mir, J.—Petitioner (Teacher) in Education Department, on reaching age of superannuation, has retired on 31st of

January' 1998. Papers for settlement of pension were submitted by respondents No. 1 to 4, but respondent No. 5 on scrutiny of the records

pointed out that the pay of the petitioner was not fixed correctly w.e.f: 1st of April 1987 to the date of retirement. The pensionary benefits were

authorized after withholding Rs. 30,000/-. At the same time, respondents No. 1 to 4 were asked to furnish the details of excess pay drawn by the

petitioner from 1st of April' 1987 till the date of his retirement. After lapse of a considerable time, respondents No. 1 to 4 in their affidavit have

stated that the due and drawn statement has been furnished to respondent No. 5 and it is respondent No. 5, who has to take the final decision. On

the basis of the objections raised by respondent No. 5 vis-a-vis incorrect fixation of the pay from 1987, respondent Zonal Education Officer has

prepared the statement wherein Rs. 28,903.28 paisa are shown to have been drawn in excess.

Petitioner in the objections has contended that the pay was fixed by the authorities concerned at the relevant point of time i.e., in the year 1987

and therefore, petitioner had no role in such fixation nor anything wrong is attributable to the petitioner. At the fag end of the service, i.e., at the

retirement of withholding gratuity and payment of less pension is to operate harshly against the petitioner when in terms of the Service Rules it is

only last pay of 24 months which the authorities can look into for the purpose of fixation of the pension. Respondent No. 5 in opposition has stated

that certain amounts have been wrongly drawn therefore, same cannot be waived.

While considering the rival submissions as advanced by the learned counsel for the parties, what emerges is that from the year 1987, authorities

concerned have fixed the pay of the petitioner, then petitioner has retired in the year 1998 and still he is clamoring for final settlement of his pension

case.

The question for consideration is as to whether it is permissible to re-examine the fixation of pay as made in the year 1987 onwards. Same is to

be answered in negative because Rule 242 of the Jammu and Kashmir Civil Services Regulations (for short C.S.R) takes care of such situations.

Rule 242 along with the Government Instructions is reproduced herein:-

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:

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 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.

Plain reading of the Rule provides that an average emoluments shall mean the average calculated upon the last ten months of service whereas the

Government instructions as quoted above, provide that the 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 cannot be used for an extensive examination going back into

the distant past. In any case, such examination shall not go back to the period earlier than fixed maximum twenty four months preceding the date of

retirement.

In violation of the Circular and the Instructions as quoted above, the respondents have examined the correctness of the emoluments of the

petitioner right from the year 1987, which means eleven years preceding the date of retirement, which is not permissible.

Similar situation has been dealt with in a case titled as Rajinder Kumar Gupta v. State of J&K & Ors decided by this Court on 8th of June'

2005, reported in 2005 (Supp) JKJ 199 (HC). In the said case, Rs. 40,000/- had been kept withheld for recovery on account of payment of

excessive pay. While referring to SRO 242 and various other judgments, it was held that the recovery on account of pay and allowances could not

be affected. In the said judgment, reliance was placed on a judgment titled Swami Raj Sharma v. Accountant General in SWP No. 364/1994. In

the said case deduction from the Gratuity on account of wrong fixation of pay fourteen years ago was held to be illegal. Again one more case was

referred to i.e., Randhir Singh v. State of Punjab & Ors., reported in 1996 (6) SLR 391. In the said judgment also excessive payment was made

due to fixation of pay by mistake. It was noticed that the petitioner has not mis-represented therefore, recovery at the time of retirement would

subject the petitioner to considerable hardship.

Again in a case titled Mulkh Raj v. Union of India rendered by this Court in case SWP No. 341/2003, it was noticed that the fixation of the pay

of the petitioner therein in the year 1987 was found to be incorrect and Rs. 60,000/- out of the Gratuity payable to the petitioner was withheld.

While referring to various judgments as referred to therein, this Court came to the conclusion that the petitioner therein was not in any way

instrumental in getting his pay fixed. Therefore, stoppage of Gratuity and pension for reason of improper fixation of the pay is not permissible.

Finally direction was issued for release of pension and gratuity.

Again in one more judgment rendered in SWP No 519/2005 titled Prem Kour v. State & Ors., it was noticed that excess amount drawn by the

petitioner was related to the period of 24 months preceding to retirement, so it was held that same could not be held basis for withholding the

gratuity of the petitioner and finally it was directed that withheld amount of gratuity to the tune of Rs. 40,000/- shall be released, pension be re-

fixed and arrears paid to the petitioner therein.

Applying the law as has been laid in the above quoted judgments, no reason is forthcoming to take a view different to what has been held.

In the instant case, admittedly petitioner has retired in the year 1998. The objection raised vis-a-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 clamoring for release of

with held amount and proper fixation of his pension.

In the background of the above stated circumstances and the law as referred to, this petition is allowed. Respondents are directed to release

the withheld amount of Gratuity of Rs. 30,000/- and also directed to settle the pension case of the petitioner by fixing the proper pension on the

basis of the Last Pay Certificate (L.P.C) while taking average of the emoluments for the last 24 months preceding the date of retirement, as is the

mandate of the Government Instructions attached to Rule 242 of J&K C.S.R. The compliance of the aforesaid directions shall be ensured within a

period of three months from today.

Petition accordingly, succeeds.