[Cites 7, Cited by 0]
Jammu & Kashmir High Court
At Jammu vs Maqbool Sheikh on 6 March, 2026
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
2026:JKLHC-JMU:692-DB
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case No. WP(C) No. 936/2025
c/w
WP(C) No. 1009/2025, WP(C) No. 1029/2025,
WP(C) No. 1099/2025, WP(C) No. 1178/2025,
WP(C) No. 1375/2025, WP(C) No. 1377/2025,
WP(C) No. 1378/2025, WP(C) No. 1525/2025,
WP(C) No. 1610/2025, WP(C) No. 1614/2025,
WP(C) No. 1615/2025, WP(C) No. 1618/2025,
WP(C) No. 1684/2025, WP(C) No. 1723/2025,
WP(C) No. 1891/2025, WP(C) No. 1896/2025,
WP(C) No. 2129/2025, WP(C) No. 2390/2025,
WP(C) No. 2478/2025, WP(C) No. 2482/2025,
WP(C) No. 2484/2025, WP(C) No. 2498/2025,
WP(C) No. 2547/2025, WP(C) No. 2557/2025,
WP(C) No. 2598/2025, WP(C) No. 2675/2025,
WP(C) No. 2738/2025, WP(C) No. 2739/2025,
WP(C) No. 2901/2025, WP(C) No. 2932/2025,
WP(C) No. 3008/2025, WP(C) No. 3068/2025,
WP(C) No. 3072/2025, WP(C) No. 326/2025 and
WP(C) No. 3263/2025.
Reserved on: 18.12.2025
Pronounced on:06 .03.2026
Uploaded on:06 .03.2026
Whether the operative part or full
Judgment is pronounced : Full
UT of J&K and others
a/w connected matters
...Petitioner(s)/Appellant(s)
Through: Ms. Monika Kohli, Sr.AAG
V/s
Maqbool Sheikh
a/w connected matters.
WP(C) No. 936/2025 a/w connected matters Page 1 of 17
2026:JKLHC-JMU:692-DB
Through:
Mr. Abhinav Sharma, Sr. Advocate with
Mr. Abhirash Sharma, Advocate.
Ms. Surinder Kour, Sr. Advocate with
Ms. Manpreet Kour, Advocate.
Mr. Sheikh Najeeb, Advocate.
Mr. Rupinder Singh, Advocate.
Mr. Pawan Choudhary, Advocate.
Mr. M K Raina, Advocate.
Mr. R S Parihar, Advocate.
Ms. Monika Thakur, Advocate.
Ms. Himani Khajuria, Advocate.
CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE.
JUDGMENT
PER OSWAL-J
1. Since these writ petitions involve common issues, they were heard
together and are being disposed of by this common judgment.
2. Learned Central Administrative Tribunal, Jammu (for short- the
Tribunal'), vide different orders disposed of the Original as well as
Transfer Applications, (writ petitions transferred by this Court to
learned Tribunal after its establishment in the year 2020).
Applications filed by the respondents, who were either in service or
had attained the superannuation were disposed of vide orders of
different dates by the learned Tribunal in terms of the following
similar directions:-
"In view of the above discussions and facts and
circumstances of the case, the following directions are passed:-
(i) The impugned order of recovery qua the applicants is
quashed and set aside and the respondents are directed
not to recover any amount from the pay/pensionary
benefits of the applicants.
2026:JKLHC-JMU:692-DB
(ii) The respondents are directed to restore the pay/pension
of the applicants which they were getting prior to the
issuance of the impugned order.
(iii) The amount recovered from the pay/pensionary benefits
of the applicants, shall be refunded preferably within two
months from the date of receipt of a certified copy of this
order.
(iv) In the cases, where the applicants have already retired,
the respondents shall pay pension to the applicants on the
basis of last pay drawn by the applicants."
Arguments:
3. Ms. Monika Kohli, learned Senior A.A.G., submits that upon the
implementation of SRO 14 of 1996, SRO 59 stood substituted,
thereby disentitling the respondents to any further benefits thereunder
w.e.f. 15.01.1996. She emphasizes that the simultaneous drawal of
benefits under both SROs constitutes an illegal 'dual benefit' resulting
in a recurring loss to the public exchequer. To address this, the
Finance Department mandated a verification process vide its Circular
dated 11.02.2021. The learned counsel further argues that by virtue of
S.O. 129, the 24-month bar contained in Instruction No. 1 is waived
for benefits granted under repealed orders. Alternatively, she
maintains that Instruction No. 1 cannot rescue the respondents, as it
pertains to the calculation of emoluments rather than the fundamental
entitlement to overlapping benefits.
4. Countering these submissions, Mr. Abhinav Sharma, learned Senior
Counsel for the respondents, asserts that the mandate of Government
Instruction No. 1 to Article 242 operates as a bar against re-opening
emolument records older than 24 months preceding the date of
superannuation. He urges that the petitioners' reliance on S.O. 129 is
misplaced, given that the respondents retired before its inception.
Moreover, he has pointed out a procedural lapse contending that 2026:JKLHC-JMU:692-DB
the
petitioners did not rely upon S.O. 129 before the learned Tribunal and
therefore cannot be permitted to introduce the same at this stage. He
has further argued that, once the respondents were not granted any
benefits under SRO-59, there was no occasion for the petitioners to re-
examine the pay scale granted to the respondents pursuant to the
circulars issued by the Chief Engineer in 1993, or to effect recoveries
from them on that basis. The other learned counsel appearing for the
respondents have adopted the arguments advanced by Mr. Sharma,
learned Senior Counsel.
5. Heard learned counsel appearing for the parties and perused the
record.
Analysis:
6. We propose to address the controversy in two parts: Part-A covers
the applications/petitions filed after the respondents reached the age of
superannuation, while Part-B deals with petitions/applications filed
by the respondents while still in service..
PART-A:
7. For the sake of brevity, the relevant facts are extracted from the lead
case, WP(C) No. 1610/2025, titled "UT of J&K and others vs.
Bishamber Dass and another."
8. In this matter, the respondents approached the learned Tribunal
seeking directions for the petitioners to release their pensionary and
retiral benefits including full monthly pension, commuted value, and
2026:JKLHC-JMU:692-DB
gratuity. They further sought to restrain the petitioners from effecting
any recoveries on the pretext that the benefits granted under SRO-
149/SRO-59 decades earlier, were illegal. The respondents relied on
Government Instruction No. 1 to Article 242 of the CSRs. The
petitioners resisted the claim, contending that the respondents had
already availed themselves of the three in-situ promotions under SRO-
14, making them ineligible for the simultaneous benefit of higher pay
scales under SRO-59. Consequently, the petitioners asserted that the
respondents' pay/pension required re-fixation. The learned Tribunal,
however, rejected these contentions and allowed the respondents'
original application in terms of directions as extracted above.
9. Now, the matter for adjudication is whether the 24-month limitation
on verifying the 'correctness of emoluments' applies to the
petitioners in the context of pension fixation.
10. Government Instruction No. 1 to Article 242 of the J&K Civil
Service Regulations, Vol-I, mandates that from January 1, 1976,
average emoluments for pension purposes shall be determined based
on the last ten complete months of service. Critically, any verification
of past emoluments, whether by the office preparing the pension
papers or the office issuing the Pension Payment Order, must not lead
to an extensive examination of the distant past. Such checks should be
limited to the minimum necessary and must not extend beyond 24
months preceding the date of retirement. Effectively, this instruction
serves as a bar, preventing authorities from questioning the
correctness of emoluments beyond that 24-month period.
2026:JKLHC-JMU:692-DB
11.A similar issue arose regarding SRO 149, which was withdrawn vide
Government Circular No. 227 dated 08.06.2010. It appears that to
bypass the restrictions of Government Instruction No. 1, which
prohibits examining the correctness of emoluments beyond 24 months
preceding retirement, the Government issued S.O. 129 dated
28.03.2022. This order incorporated Government Instruction No. 2,
which is extracted below:
"S.O.-129.-- In exercise of the powers conferred by proviso to
Article 309 of the Constitution of India, the Lieutenant
Governor is pleased to direct that the following amendments
shall be made in the Jammu and Kashmir Civil Service
Regulations, Vol-I; namely:--
In Article 242--(i) Government Instructions shall be
renumbered as Government Instruction No. 1;
(ii) After Government Instructions No. 1, the
following shall be inserted as Government Instruction No.
2; namely:
"Government Instruction No. 2.-- It has been observed
that departments have been extending benefit of
deleted/withdrawn SROs/Government Orders etc. to the
employees beyond the date of deletion/withdrawal due to which
a huge loss is being inflicted on the Government exchequer.
In order to safeguard the Government exchequer against
the loss, the restriction of limiting the exercise of checking the
correctness of the Pay emoluments to 24 months preceding the
date of retirement by the office of Accountant General shall not
be applied in the cases where undue benefit of
deleted/withdrawn SROs/Government Orders etc. beyond the
date of deletion/withdrawal has been granted to employee."
12.As is evident, the Govt. Instruction No.1 to Article 242 places
restraint upon the employee/pension sanctioning authority from
undertaking exercise of examining the correctness of the employments
for a period more than 24 months preceding the date of retirement.
13.The term 'correctness of emoluments' applies to instances where an
employee was assigned an incorrect pay scale or where arithmetical
and clerical errors occurred during pay fixation. However, it does 2026:JKLHC-JMU:692-DB
not
extend to cases where an employee was granted unauthorized dual
benefits, nor does it apply to a broad class of employees; its scope is
limited to the individual level. The Government Instruction No.1
would cover a situation where the employee was granted the benefit
of wrong pay scale for instance in terms of SRO 59 or granted wrong
in-situ promotion thereby resulting into grant of higher pay scale and
in these cases, the employer would be debarred from undertaking
any exercise to examine the correctness of the emoluments beyond 24
months prior to the date of retirement, but in cases where a particular
class of employees has been granted dual benefits to which it was
never entitled to, it would not fall within the meaning of 'correctness
of emoluments' so as to restrict the employer from undertaking any
exercise to examine the correctness of the emoluments beyond 24
months prior to the date of retirement and the employer would be
within its right to examine and point out any such mistake. The
respondents cannot be allowed to benefit indefinitely from an
administrative error; such unjust enrichment is legally unsustainable
putting unnecessary burden on the state exchequer and must be
rectified.
14.The Government, while retaining Government Instruction No. 1 to
Article 242 of the CSR, subsequently incorporated Government
Instruction No. 2, as extracted hereinabove. By doing so, the
Government has explicitly excluded the contingencies contemplated
under Government Instruction No. 2 from the ambit of Government
Instruction No. 1, which exclusion was otherwise only implicit2026:JKLHC-JMU:692-DB
in
Government Instruction No. 1.
15.In Syed Abdul Qadir and others Vs. State of Bihar and others
reported in 2009 (3) SCC 475, the Hon'ble Supreme Court of India
has observed that the relief against the recovery is granted by the
courts not because of any right in the employees, but in equity,
exercising judicial discretion to relieve the employees from the
hardship that will be caused if recovery is ordered.
16.While the recovery of benefits mistakenly granted to an employee is
prohibited on the principle of equity to prevent undue hardship, this
does not grant the employee a vested right to receive such benefits in
perpetuity. An employee has no legal entitlement to continue
receiving dual or erroneous benefits in the future once the error is
identified.
17.The coordinate bench of this Court in writ petition being WP(C)
No.2416/2024, decided on 04.04.2025 titled Sita Ram and others
Vs. UT of J&K and others, where learned Tribunal had permitted
the employer to re-fix the pay structure of the petitioners therein, but
simultaneously restrained the employer from effecting recovery of
excess benefits granted to the petitioners therein, has observed that
once a mistake is always a mistake and no employee including one
nearing his superannuation, is entitled to reap the benefit of any
error committed by the employer while fixing the pay scale. After
making above observations, the coordinate bench of this Court
dismissed the writ petition preferred by the petitioners therein
whereby the respondents were left free to re-fix the pay structure of
the petitioners therein while denying the higher pay scale to them.2026:JKLHC-JMU:692-DB
In
fact, in the said writ petition also, the similar controversy was
involved as involved in these petitions.
18.We have examined the order passed by the learned Tribunal and find
that the learned Tribunal has not correctly adjudicated the
controversy.
PART-B
19.In writ petitions covered by part-B, the respondents are/were in
service when OAs/TAs were filed. The facts are extracted from
WP(C) No.1375/2025 titled "UT of J&K and others Vs. Sat Paul and
others".
20.The respondents, who were still in service when they approached the
learned Tribunal, sought to quash circular dated 08.07.2021 issued by
petitioner No. 3 (the Superintending Engineer, Hydraulic Circle,
Jammu). This circular sought to effect recovery from their salaries
beginning in August 2021. Additionally, the respondents sought an
order restraining the petitioners from making any such recoveries
based on the impugned circular. They asserted that they were wrongly
denied the higher pay scale of Rs. 950-1500, arguing that similarly
situated Class-IV employees had already been placed in that scale
pursuant to the 1993 circular issued by the Chief Engineer and not
under SRO-59.
21.Previously, the respondents and other similarly situated individuals
filed several writ petitions, which were disposed of with directions to
the petitioners to consider their cases in light of specific judicial
2026:JKLHC-JMU:692-DB
precedents. In compliance, the petitioners reviewed the respondents'
cases and granted them upgraded pay scales. Subsequently, petitioner
No. 2 (the Chief Engineer) issued a circular dated 30.06.2020,
directing all Drawing and Disbursing Officers (DDOs) to form
Committees to detect pay fixation errors and recover any excess
payments. This circular was challenged in two separate applications
viz. OA No. 428/2021 (Madan Lal & Ors.), where the circular was
stayed, and OA No. 617/2021 (Romesh Lal & Ors.), where the
Tribunal directed that no recovery be affected without prior notice and
an opportunity for explanation.
22.In another application (OA No. 61/1093/2021), the respondents
challenged the circular dated 08.07.2021, and an interim order was
passed on 02.08.2021. This circular mandated Committees to verify
service records, specifically for employees benefiting from SRO-59
and SRO-149 and to initiate recoveries for alleged miscalculations.
The respondents contested this, asserting they never received benefits
under SRO-59; instead, their higher pay scale was granted under the
circular issued by the Chief Engineer in the year 1993.
23.The petitioners opposed the claim, contending that upon the
commencement of SRO-14 of 1996, the respondents were no longer
entitled to the benefits of SRO-59 with effect from 15.01.1996. After
hearing the parties, the learned Tribunal disposed of the applications
in accordance with the directions previously detailed herein.
24.To provide context for our adjudication, we first set out the facts
necessary for resolving the controversy.
2026:JKLHC-JMU:692-DB
25.The record indicates that under SRO 59 of February 6, 1990, common
posts and pay scales in Appendix '2-A' were incorporated into the
J&K Civil Services (Revised Pay) Rules, 1987. This SRO was
applicable to Public Works Department which included Roads &
Building/PHE, Irrigation and Flood Control (now Jal Shakti), Urban
Environmental Engineering Department. Notably, the pay scales
prescribed therein do not include the scale of Rs. 950-1500. In fact,
vide Government Order No. 78-PDD of 1995 dated 20.03.1995, as is
evident from the subject of the said order, the pay scale of the field
staff of the Power Development Department was rationalized on the
pattern of SRO-59 of 1990.
26.The petitioners argue that the respondents were granted benefits under
this SRO, whereas the respondents contend that they received the
higher grade (₹950-1500) vide the Chief Engineer's circulars dated
March 18, 1993, and June 11, 1993. Notably, these circulars are not
independent sources of the benefit; they merely prescribe the
conditions for its grant, with the substantive right originating from
SRO 59.
27.It is the petitioners' contention that SRO 59 was superseded by SRO
14 of 1996, the latter providing for time-bound promotions at intervals
of 9, 18, and 27 years. Relying on Rule 3(g), which excludes posts
with 'special treatment' from its ambit, the petitioners urge that the
benefits of SRO 59 and SRO 14 are mutually exclusive. As such, they
assert that no employee could be granted the benefit of SRO 59 after
the implementation of SRO 14 on January 15, 1996.
28.The record further indicates that SRO-59 stood withdrawn as2026:JKLHC-JMU:692-DB
of
August 11, 2003, vide Order No. 165-F, with the withdrawal made
effective from January 15, 1996. Upon taking cognizance of persistent
irregularities in the year 2021, the Finance Department directed all the
administrative Heads and Drawing and Disbursing Officers to furnish
a verification certificate. The said certificate is required to affirm that
any benefit extended to an employee under SRO-59 is legally valid
and in accordance with the governing rules before the employee's
pension papers are processed.
29.As already mentioned above, the pay scale of Rs. 950-1500 finds
mention in Order No. 78-PDD of 1995, which pertains exclusively to
the Power Development Department, and not in SRO-59. In fact,
neither of the parties was able to establish before us as to how the
benefit of the pay scale of Rs. 950-1500 came to be granted, when the
same does not find mention in the prescribed pay scales of the PHE
(Jal Shakti) Department. It appears that a number of writ petitions
were filed by the employees seeking grant of the benefit of a higher
pay scale, pursuant to which the petitioners were directed to consider
the cases of the employees for such grant. The petitioners thereafter
considered the claims and extended the benefit of a higher pay scale,
apparently oblivious to the issuance of SRO-14. The respondents have
admitted that they availed the benefit of the higher pay scale;
however, according to their version, as already noticed hereinabove,
the said benefit was accorded in terms of the circulars issued by the
Chief Engineer, PHE, in the year 1993.
2026:JKLHC-JMU:692-DB
30.Be that as it may, the genesis of the upgraded pay scale can be traced
to SRO-59 of 1990, though it appears that the pay scale of Rs. 950-
1500 was borrowed from the pay structure applicable to the Power
Development Department, as the pay scales were rationalized by the
Power Development Department on the pattern of SRO-59. SRO-14
issued on 15.01.1996, provides for grant of three in-situ promotions,
and the petitioners are justified in submitting that the object and intent
underlying the issuance of both SRO-14 and SRO-59 was the same
i.e., to grant higher pay scales.
31.Rule 3(iii) (g) excluded the categories of employees for which special
treatment is expressly provided or may be provided under any law or
rules or Notification or order for the time being in force. These rules
were in fact not meant for the employees who were getting specialized
treatment. Notwithstanding the inapplicability of SRO-14 to the
respondents, the benefit under SRO-14 was granted to respondents
simultaneously with the benefits under SRO-59.
32.Be that as it may, it is evident that the object and intent underlying
SRO-59 and SRO-14 were the same. Although SRO-59 does not
explicitly provide for the Rs. 950-1500 scale, this specific bracket
appears to have been adopted from the pay structure of the Power
Development Department. Consequently, we find no merit in the
respondents' submission that this higher scale was granted pursuant to
the circular issued by the Chief Engineer in the year 1993. That
contention is accordingly rejected.
33.We hold that the respondents were erroneously extended dual benefits
under both SRO-59 and SRO-14. It is manifest that this unintended
windfall arose directly from the oversight and lapse on the part of 2026:JKLHC-JMU:692-DB
the
petitioners; consequently, the respondents came to receive benefits to
which they were otherwise not legally entitled.
34.As established in Part-A of this judgment, the petitioners retain the
authority to re-fix pensions notwithstanding the Government
Instruction No. 1 appended to Article 242 of the CSR. It follows that
where respondents have erroneously received dual benefits, there is no
legal justification to divest the employer of its right to rectify pay
scales. Notably, no statutory provision prohibits an employer from
withdrawing an erroneously conferred benefit. Accordingly, we hold
that the petitioners may re-fix the pay/pension by deducting the
benefits wrongly granted.
35.The contention of the respondents that the aforesaid benefits were
granted pursuant to directions issued by this Court is devoid of merit.
The respondents themselves admit that the earlier judicial directions
were confined merely to consideration of their cases on the principle
of parity. There was neither any formal adjudication with regard to
their substantive entitlement to the upgraded pay scales, nor has any
such determination been brought to our notice. In the absence thereof,
the petitioners are not precluded from effecting correction in
accordance with law.
36.The issue that now remains for adjudication is whether the petitioners
are entitled to affect recovery from the respondents. It is an admitted
position that all the respondents belong to Group 'C' and Group 'D'
services.
2026:JKLHC-JMU:692-DB
37.It would be apposite to take note of the judgment of the Hon'ble
Supreme Court State of Punjab v. Rafiq Masih (White Washer),
2015 AIR (SC) 696, wherein in para No.18 it is held as under:
"18. It is not possible to postulate all situations of hardship
which would govern employees on the issue of recovery, where
payments have mistakenly been made by an employer, in
excess of their entitlement. Be that as it may, based on the
decisions referred to hereinabove, we may, as a ready reference,
summarize the following few situations, wherein recoveries by
the employers would be impermissible in law:
(i) Recovery from employees belonging to Class-III and
Class-IV (or Group 'C' and Group 'D') services.
(ii) Recovery from retired employees, or employees who are
due to retire within one year, of the order of recovery.
(iii) Recovery from employees, where 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 a lower post.
(v) Recovery in any other case, where the Court arrives at the
conclusion that recovery, if made from the employee, would be
harsh or arbitrary, so as to far outweigh the equitable balance
of the employer's right to recover."
38. It would also be apt to take note of the observations made by the
Hon'ble Supreme Court of India in ITC Ltd. v. State of U.P. &
Others, reported in (2007) 11 SCC 493, in para 108 which is
extracted as under:-
"108. We may give an example from service jurisprudence,
where a principle of equity is frequently invoked to give
relief to an employee in somewhat similar circumstances.
Where the pay or other emoluments due to an employee is
determined and paid by the employer, and subsequently the
employer finds, (usually on audit verification) that on
account of wrong understanding of the applicable rules by
the officers implementing the rules, excess payment is made,
courts have recognized the need to give limited relief in
2026:JKLHC-JMU:692-DB
regard to recovery of past excess payments, to reduce
hardship to the innocent employees, who benefited from
such wrong interpretation."
(emphasis added)
39.Based on the aforementioned judgments, excess payments made to
employees due to misinterpretation of rules over a long period cannot
be recovered. Such recovery would be iniquitous, particularly for
Group-C and Group-D employees who typically utilize their entire
earnings for essential needs such as food, clothing, shelter, and
education. Since the petitioners admit the respondents belong to these
groups, attempting to recover funds paid out over several decades
would impose an undue and inequitable hardship.
40.Interestingly, in "Sita Ram and others Vs. UT of J&K and others",
identical issue was decided by the coordinate Bench of this Court
wherein the petitioners were allowed to re-fix the pay, however, were
restrained from effecting recoveries from the employees and in that
case also the same circular was impugned by the petitioners therein
which was impugned by the respondents herein, before the learned
Tribunal. That judgment appears to have attained the finality as the
learned counsel representing the parties did not bring to the notice of
this Court that the said judgment has been challenged by either of the
parties.
41.We find that the learned Tribunal's order did not adequately address
the underlying issues in their correct legal and factual perspective.
Conclusion:
42.Accordingly, all these writ petitions are disposed of by modifying the
impugned order(s) to the extent that the petitioners shall not affect any
2026:JKLHC-JMU:692-DB
recovery of the excess amount already paid to the respondents and, if
any such amount has been recovered, the same shall be refunded to
them within the period prescribed by the learned Tribunal. However,
the petitioners shall be at liberty to re-fix the pay/pension of the
respondents by excluding the benefit wrongly granted to them.
43.The Registry shall place a copy of this judgment on the record of each
of the above-captioned matters.
(Rajnesh Oswal) (Arun Palli)
Judge Chief Justice
Jammu
06 .03.2026
Madan Verma-Secy
Whether order is speaking? Yes
Whether order is reportable? Yes
