Jammu & Kashmir High Court - Srinagar Bench
Ghulam Qadir Lone vs Vice Chairman Lakes And on 9 May, 2025
Author: Sindhu Sharma
Bench: Sindhu Sharma
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(C)1200/2023
Pronounced on 09.05.2025
Ghulam Qadir Lone .... Petitioner/Appellant(s)
Through:- Mr.Mir Javid, Advocate
V/s
Vice Chairman Lakes and .....Respondent(s)
Waterways Development
Authority & ors.
Through:- Mr. Mubashir Majid Malik, Dy.AG.
Mr. B.A.Zargar, Advocate..
CORAM : HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
JUDGMENT
1. Petitioner has filed this writ petition under Article 226 of the
Constitution of India seeking issuance of appropriate writ or
direction as he is aggrieved of the inaction of the respondents for
the reason that his service benefits have been withheld by them.
2. The case as projected by the petitioner is that he was working in
the respondent-department (LAWDA) and retired from service on
30-04-2020 on superannuation. He was engaged in the department
on 20-04-1980 as Daily Wager and rendered his services for twelve
years before he was regularized on 01-04-1994 as Helper in the
Pay Scale of Rs.750-940. After rendering the effective services, in
year 1997, he was promoted to the post of 'Works Supervisor" with
effect from 30-04-1997 in the Pay Scale of Rs.4000-100-6000. He
continued to work on this post till his superannuation. Additionally
he was also granted in-situ promotions during the course of his
service and he retired in the Pay Scale of Rs.9300-34800 with
Grade Pay of Rs.4200.
3. It is urged that petitioner retired on 30-04-2020 and on his
retirement, case was forwarded to respondent No.03 for processing
the pension and other service benefits of the petitioner. As per PPO
Book, respondent No.03 worked out the net gratuity payable to the
petitioner at Rs.10,34,784/- and after settling the case of the
petitioner in terms of Government Instruction below Article 242 of
J&K CSR and respondent No.02 was asked to fulfill certain
conditions including furnishing of a certificate to the effect that the
benefit of SRO-59 to be allowed to the employee has been found in
order.
4. Respondent No.4 forwarded the case to respondent No.2 for
necessary action and disbursal of gratuity in favor of the petitioner.
It is stated that due to the non-fulfillment of aforementioned
conditions by the respondent No.2, neither the pension nor the
gratuity of the petitioner could be released in his favor, accordingly,
the respondent No.4 issued a reminder to the respondent No.02 for
fulfillment of the said conditions. A reliance is placed on the
circular issued by the Finance Department under
No.A/Codes/Pension/20-116 dated 11-02-2021, wherein it is
mentioned that any irregularities found while drawing
the pay employee shall be the responsibility of
DDO concerned and if any excess amount
paid, shall be recovered from him personally. Respondent No.2 to
avoid the liability kept the pension case of the petitioner pending
for the past two years affecting his livelihood.
5. It is urged that petitioner also moved a representation before the
respondent-department seeking release of his service benefits;
however, despite the lapse of almost four months, the department
has arbitrarily deprived him of the benefits and also not disposed of
his representation as yet.
6 It is also contended that petitioner further approached Central
Administrative Tribunal, Srinagar Bench through OA No.425/2022
which was disposed of vide its Order dated 23-5-2022 whereby the
respondents are directed to decide the claim of the petitioner within
a period of 02 months but the needful was not done. Thereafter
petitioner filed a Contempt Petition against the respondents in
C.P/148/2022, however, during the pendency of which respondents
took an objection regarding the jurisdiction of the Tribunal to hear
the matter as the same falls within the jurisdiction of this Hon'ble
Court, as such, the Tribunal dismissed the petition vide its Order
dated 11-04-2023.
6. The inaction on the part of the respondents for not releasing the
service benefits of the petitioner to which he is legally entitled
without following the due process of law is illegal, bad, and
unconstitutional; therefore service benefits of the petitioner required
to be released.
7. Grant of pay scales is in the domain of respondent No.2 and the
petitioner has no concern or access to the same and in terms of the
circular referred to hereinabove it is the sole responsibility of the
DDO that, in case, of any irregularity found in the pay scale of an
employee and the employee cannot be held accountable for the
same after his retirement.
8. It is urged on behalf of the petitioner that based on various
judgments of the Hob‟ble Apex Court passed in "Union of India
and others versus Jagdish Pandey and ors." decided on
08.07.2010, in case titled as "Sahib Ram versus State of Haryana
and others" reported in 1995 Supp (1) SCC 18, in case titled as
"Syed Abdul Qadir versus State of Bihar and others", reported
in 2009 (3) SCC 475, in case titled as "State of Punjab versus
Rafiq Masih" report in 2015(4) SCC 334 and in case titled as
"Thomas Danial versus State of Kerala and others" 2022 Live
law (SC) 438, it has been consistently laid down and held that once
the department has made the pay fixation of an employee without
any misrepresentation or fraud by the said employee, then the
employer cannot reduce the pay by alleging that the pay was fixed
wrongly and that too at the fag end of the service of an employee or
even after his retirement and that the pension of such an employee
is to be fixed on the basis of last pay drawn by such employee and
also that no recoveries thereof can be either ordered or effected on
account of such alleged wrong fixation at the fag end of that
service or after the retirement of the said employee. A judgment
dated 28.08.2024 passed by Hon‟ble Division Bench of this court of
Srinagar Wing, in case, „Jamsheed Ahmad Khan vs. Union
Territory of J & K Kashmir and ors. also relied upon by the
learned counsel for the petitioner, which according to him does
support the case of the petitioner.
9. Keeping in view the facts and circumstances of this case and also
after taking support from the law laid down by the Apex Court in
the judgments as well as Division Bench referred to hereinabove,
there is no need for a different view to be taken in this matter
and the same can be disposed of in light of same.
10. Accordingly, this petition is allowed after following mandate as
laid down in the judgments supra in the instant case as well. The
respondents are commanded to release the service benefits as
calculated in terms of the PPO issued by respondent No.04 in
favour the petitioner and thereafter his monthly pension be also
released as per the last pay drawn by the petitioner during his
service.
11. Disposed in the terms aforesaid.
(Sindhu Sharma)
Judge
Jammu
Ved-Secy.
09.05.2025
Whether the order is speaking : Yes
Whether the order is reportable : Yes/No
