Jammu & Kashmir High Court
Rita Gupta Wd/O Late Sh. Girdhari Lal vs The State Of Jammu And Kashmir Through ... on 1 May, 2024
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
WP(C ) 2352/2019
1. Rita Gupta Wd/o Late Sh. Girdhari Lal
2. Poonam Mahajan D/o Late Sh. Girdhari Lal
3. Aditya Gupta S/o Late Sh. Girdhari Lal
4. Abhishek Mahajan S/o Late Sh. Girdhari Lal (legal heirs of deceased
Girdhari Lal)
All residents of House No. 226-H, Lane No.2, Talab Tillo, Bohri,
Jammu
...Petitioners
Through: - Mr. Anirudh Sharma Advocate.
Vs.
1 The State of Jammu and Kashmir through its Principal Secretary to
Government, Finance Department, J&K Civil Secretariat
Jammu/Srinagar.
2. Commissioner Jammu Municipality Town Hall Building,Jammu
3. Executive Engineer, Jammu Municipality Town Hall Building,
Jammu
4. Chief Account Officer,Jammu Municipality Town Hall Building,
Jammu
5. Accountant General J&K State Shakti Nagar, Shakti Nagar Jammu
6. Examiner/CAO Local Find audit and pension
Jammu. ...Respond
ents
Through: - Ms Monika Thakur Advocate vice
Mr. S.S.Nanda Sr. AAG for R-1 to 4
Ms. Monika Thakur, Standing Counsel for R-5
Mr. K.D.S.Kotwal Dy.AG for 6.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT(ORAL)
1 The subject matter of challenge in this petition is order
No.277-F of 2018 dated 06.06.2018 issued by respondent No.1 and due
drawn statement in respect of the petitioner, according to which, a
recovery of Rs.18,04,608/- is to be made from the petitioner. A further
direction has been sought upon the respondents to settle and grant all the
pensionary benefits to the petitioner as per the last pay drawn. It is
pertinent to mention here that during pendency of the writ petition, the
petitioner passed away and in his place, his legal heirs have been
substituted as petitioners.
2 Briefly stated, the facts of the case, which emanate from pleadings
of the parties, are that the petitioner was initially appointed as Daily
Wager in Jammu Municipal Corporation and later on, his services were
regularized as Lineman. It appears that the petitioner superannuated
from service on 31.10.2018. During the service career, the petitioner was
placed in the pay scale of Rs.825-15-900-EB-20-1200 w.e.f 1.1.1995
and was granted second In-Situ promotion w.e.f 01.09.2001 in the pay
scale of Rs.3050-4590. He got third In-Situte promotion in terms of SRO
14 of 1996 in the pay scale of Rs.9300-34800+4200 GP w.e.f
01.09.2010. It also appears that during the service career, the petitioner
was granted enhanced grades in terms of SRO 14 of 1996 as well as in
terms of SRO 59 of 1990, though according to the respondents, he was
not entitled to the enhanced grades under both the aforesaid SROs at the
same time. It is further case of the respondents that the petitioner has
been granted benefits in terms of SRO 59 of 1990 in contravention of the
rules, inasmuch as SRO 14 of 1996 had already come into existence.
Thus, according to the respondents, the petitioner has drawn excess
salary of Rs. 18,04,608/- which is sought to be recovered from him.
3 Heard and considered.
4 It is not in dispute that the petitioner has superannuated from
service. It is also not in dispute that the recovery of excess pay allegedly
released in his favour has not been effected during the period of his
service. It is not the case of the respondents that the petitioner either
connived with the Drawing and Disbursing Officer or he had
misrepresented the facts before the respondents while drawing excess
salary.
5 The only question, that is required to be determined, is as to
whether the respondents can effect recovery of excess salary allegedly
drawn by the petitioner during his service career after he has
superannuated from service, by deducting/withholding the same from his
pensionary benefits.
6 The Supreme Court in the cases of State of Punjab and
others vs. Rafiq Masih, AIR 2015 SC 696 and Thomas Daniel vs.
State of Kerala and others, 2022 LiveLaw (SC) 438
has categorically held that if the excess amount was not paid on account
of any misrepresentation or fraud of the employee or if such excess
payment was made by the employer by applying a wrong principle for
calculating the pay/allowances or on the basis of a particular
interpretation of rule/order, which is subsequently found to be erroneous,
such excess payment of emoluments or allowances are not recoverable
from pensionary benefits of an employee. This position of law has been
reiterated and reaffirmed by this Court in the following cases:
(i) UT of J&K and ors vs. Deshbir Singh and another
(LPA No. 119/2019, decided on 22.09.2023); and,
(ii) Vinod Kumar vs UT of J&K and others, (WP(C )
No.846/2020)
7 In view of the aforesaid settled position of law, it is clear
that the respondents cannot effect recovery of excess salary drawn by the
petitioner during his service career because there are no allegations of
misrepresentation and fraud against him. Thus, the impugned action of
the respondents regarding recovery of excess payment drawn by the
petitioner during his service career is not sustainable in law and the same
is liable to be quashed.
8 Accordingly, the wit petition is allowed and the impugned action
of the respondents relating to recovery/withholding of excess
salary/allowances drawn by the petitioner is quashed. It is, however,
open to the respondents to recommend fixation of pension of the
petitioner on the basis of last pay drawn after deduction of the benefits
under SRO 59 of 1990.
9 Disposed of accordingly.
(Sanjay Dhar)
Judge
JAMMU
01.05.2024
"Sanjeev ' Whether order is reportable:Yes
