The Petitioner seeks issuance of Writ of Certiorari quashing Order No. PNRJ-1/J-F/1999-2000/720-21 dated 12. 10. 1999 and further writ of Mandamus directing the respondents to pay basic pension and gratuity less by the amounts which have already been paid by computing the same on the basis of the last pay drawn.

The petitioner joined the Forest Department in the year 1969 and retired on 31. 1. 2000. His pension papers were prepared and sent to the Accountant General who raised an objection that the pay of the petitioner has not been fixed correctly as per SRO 370/87. It has been fixed Rs. 2440/- per month instead of Rs. 2320/- per month and asked the department to furnish the due and drawn statement for effecting recovery. The Conservator of Forest vide his letter dated 17. 12. 1999 annexed as Annexure P. 6 with the petition, relying upon the Article 242 of J&K Civil Services Regulations objected for re-fixation of the pay being earlier fixed in terms of the SRO-370/87 and re-submitted the case for release of amount of pension and other earned retired benefits. Despite that the petitioner has not been granted the benefit of pension, gratuity etc according to the last pay drawn by the petitioner. He has approached the court under such circumstances to seek relief prayed for.

Petition was admitted to hearing provided opportunity to the respondents to file counter affidavit. Respondent No. 2 has only filed the reply stating therein that pay of the petitioner has not been properly fixed in the year 1987 while giving the benefits of pay revision in terms of the provisions of SRO 370/87. The respondent No. 4, Secretary Forest Department was provided numerous opportunities to file counter affidavit. He opted not to file the reply. On 22. 5. 2001 said respondent was directed to appear alongwith the record on the next date of hearing, specifically stipulating that if he opts not to appear alongwith the record it shall be presumed that he has no objections in granting the relief prayed for by the petitioner. He opted not to produce the record.

Heard learned counsel for the parties and perused the pleadings.

Learned counsel for the petitioner has submitted that the case of the petitioner has been processed by his Department in accordance with law and there is no excessive or wrong fixation of pay as pointed out by the respondent No. 2. The conservator of Forest Chenab Circle has also vide letter dated 71. 12. 1999 in reply to the letter of respondent No. 2 asked him to settle and release the pension of the petitioner according to pay fixed and reflected in the Service Book. He has also point out that the Service Book of the petitioner was checked by the Audit Party of the Respondent No. 2, who has not pointed out any wrong fixation of pay during the period out any wrong fixation of pay during the period of fourteen years. The plea of the learned counsel for the petitioner is that after the retirement of the petitioner, Respondents now cannot turn back and point out difference in fixation of pay fixed 14 years earlier. To deal with such irregularities he has point out the provisions contained in Article 242 of J&K Civil Service Regulations which reads as under:-

"242. 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 of service;

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 Instruction -- 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

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