[Cites 1, Cited by 0]
Jammu & Kashmir High Court
Reserved On: 13.02.2026 vs Ut Of J&K & Ors on 20 February, 2026
Author: Sanjay Dhar
Bench: Sanjay Dhar
2026:JKLHC-JMU:472
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
WP(C) No. 1390/2020
Reserved on: 13.02.2026
Pronounced on : 20.02.2026
Uploaded on : 20.02.2026
Whether the operative part or full
judgment is pronounced: Full
Bal Krishan Sharma
....Petitioners
Through:- Mr. Abhirash Sharma, Advocate.
V/s
UT of J&K & Ors
.....Respondents
Through:- Mr. P.D. Singh, Dy. AG
\
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
(JUDGMENT)
01. The petitioner, through the medium of the present
petition, has challenged Circular No. RCS/Accounts/Adm./G-
107/386-1531 dated 11.07.2020 to the extent it provides for
retirement of employees of Jammu Cooperative Wholesale
Limited (Super Bazaar), Jammu at the age of 58 years instead
of 60 years and to the extent it provides for recovery of
amount/salary drawn by the petitioner beyond 58 years of age
along with interest. The petitioner has also sought a direction
upon the respondents to allow him to continue in service until
2026:JKLHC-JMU:472
he attains the age of 60 years; with a further direction to
release the salary, which according to the petitioner has been
withheld w.e.f., July, 2020.
02. According to the petitioner, he was initially
appointed as Helper in the Jammu Cooperative, Wholesale
Limited (Super Bazaar), Jammu (hereinafter to be referred to
as "respondent-Cooperative Society") and at the time of
filing of the writ petition, he was serving on the post of Senior
Salesman. It has been submitted that the respondent-
Cooperative Society framed its bye laws pursuant to the
approval of Board of Administrators vide resolution dated
28.05.2017, which was subsequently registered and
recommended by Registrar Cooperative Societies vide his
communication dated 25.05.2017 whereafter the State
Government vide order bearing No. 20 Coop of 2017 dated
31.05.2017 granted sanction to the enhancement of age of
retirement of the employees of the respondent-Cooperative
Society from existing 58 years to 60 years.
03. It is being claimed that on the basis of the aforesaid
order dated 31.05.2017, many employees including the
petitioner continued to serve beyond 58 years of age and they
were expecting their superannuation at the age of 60 years.
However, the respondents issued the impugned Circular dated
11.07.2020 whereby all Cooperative Societies including the
respondent-Cooperative Society was directed to retire all
employees at the age of 58 years and to effect recovery of the
2026:JKLHC-JMU:472
amount of salary drawn beyond 58 years of age along with
interest.
04. Learned counsel for the petitioner during the course
of hearing has submitted that in view of the settled position of
law that employees of Cooperative Society have to retire at the
age of 58 years, the petitioner does not press for the challenge
to impugned Circular to the extent it provides for retirement of
employees at the age of 58 years but is confining the challenge
to the said Circular to the extent it directs recovery of salary
drawn by the petitioner for the period he has served with the
respondent-Cooperative Society beyond the age of 58 years.
05. In view of the aforesaid submission of learned
counsel for the petitioner, the grounds urged by the petitioner
for assailing the impugned Circular to the extent it provides for
retirement of employees of respondent-Cooperative Society at
the age of 58 years are not being narrated herein. So far as
the said Circular provides for recovery of amount drawn as
salary by the petitioner after continuing in service beyond 58
years of age is concerned, it has been contended that it is
settled position of law that no recovery can be effected from an
employee after his retirement unless it is shown that he has
drawn emoluments on the basis of any fraud.
06. The respondents have contested the writ petition by
filing objections thereto, wherein it has been submitted that
the petitioner has furnished an affidavit accepting his age of
retirement as 58 years and in this regard, he has furnished an
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undertaking. It has been further submitted that as per Rule
13(1) of SRO 233 of 1988 which governs the age of retirement
of employees of respondent-Cooperative Society, the petitioner
had to retire on attaining the age of 58 years but he continued
to serve beyond the said age, therefore, he is not entitled to
salary which he has drawn beyond the period of date of his
retirement.
07. I have heard learned counsel for the parties and
perused record of the case.
08. As already stated, the petitioner has withdrawn his
challenge to the impugned Circular to the extent it provides for
retirement of employees of respondent-Cooperative Society at
the age of 58 years. The only question that remains to be
determined is whether the action of the respondents in
directing recovery of the amount of salary that has been drawn
by the petitioner while serving beyond the age of 58 years is
justified in law. In this regard, the legal position has been well
settled by the Supreme Court of India in the case of State of
Punjab and ors Vs. Rafiq Masih (White Washer) etc., 2015
(4) SCC 334. The Supreme Court while considering this
aspect of the matter, has summarized few situations wherein
recoveries by the employers would be impermissible in law.
The same are reproduced as under:
"(i) Recovery from employees belonging to Class-III
and Class-IV service (or Group 'C' and Group 'D'
service).
2026:JKLHC-JMU:472
(ii) Recovery from retired employees, or employees
who are due to retire within one year, of the order of
recovery.
(iii) Recovery from employees, when the excess
payment has been made for a period in excess of five
years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has
wrongfully been required to discharge duties of a
higher post, and has been paid accordingly, even
though he should have rightfully been required to work
against an inferior post.
(v) In any other case, where the Court arrives at the
conclusion, that recovery if made from the employee,
would be iniquitous or harsh or arbitrary to such an
extent, as would far outweigh the equitable balance of
the employer's right to recover."
09. From the above, it is clear that recovery from retired
employees or employees, who are due to retire within one year
of the order of recovery, is not to be effected unless it is shown
that excess payment was made to such an employee on
account of some fraud to which he was a privy.
10. Turning to the facts of the present case,
Government of J&K had, vide Govt. Order No. 20 Coop of 2017
dated 31.05.2017, accorded sanction to the enhancement of
retirement age of the employees of the respondent-Cooperative
Society from existing 58 years to 60 years with effect from the
issuance of the said order. It is because of this Government
order that the petitioner continued to serve the respondent-
Cooperative Society even after attaining the age of 58 years. It
2026:JKLHC-JMU:472
is not the case of respondents that petitioner had anything to
do with issuance of Government Order dated 31.05.2017 nor
is it the case of respondents that issuance of said order is a
result of fraud. It appears that respondents after realizing that
upon issuance of Government order dated 31.05.2017, the
employees have continued to remain in service even after
attaining the age of 58 years despite the said order being
contrary to SRO 233 dated 08.07.1988, came up with the
impugned Circular clarifying the position meaning thereby that
an ambiguity with regard to the age of superannuation of
employees of respondent-Cooperative Society had arisen on
account of issuance of Government Order dated 31.05.2017.
It is because of this reason that the petitioner continued to
serve even after attaining the age of 58 years. For this, he
cannot be held responsible and no oblique motive or malafide
intention can be attributed to him. Therefore, effecting
recovery of salary which he has drawn for the period for which
he has worked beyond the period of 58 years or for that matter
in withholding his salary for the period for which he has
actually worked beyond 58 years of age is contrary to the law
laid down by the Supreme Court in Rafiq Masih's case (supra)
11. For what has been discussed hereinabove, the writ
petition is partly allowed and impugned Circular dated
11.07.2020 to the extent it provides for recovery of amount
drawn by the employees of the respondent-Cooperative Society
for having served beyond the age of 58 years is quashed and
2026:JKLHC-JMU:472
the respondents are restrained from effecting any recovery
from the pension and pensionary benefits of the petitioner.
They are further directed to release the withheld salary for the
period for which the petitioner has actually worked with the
respondent-Cooperative Society.
12. Disposed of accordingly.
(SANJAY DHAR)
JUDGE
JAMMU
20.02.2026
Naresh/Secy.
Whether the judgment is speaking: Yes
Whether the judgment is reportable: No
