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2024 Supreme(JK) 289
Sr. No.19
Regular List
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(C) No.1261/2023
FAROOQ AHMAD ZARGAR
…Petitioner(s)
Through:
Mr. L. A. Latief, Advocate.
Vs.
UT OF J&K & ORS.
…Respondent(s)
Through:
Mr. Bikramdeep Singh, Dy. AG.
Ms. Shaila, Assisting Counsel, vice Mr. Allau-ud-Din
Ganai, AAG.
CORAM: H ON’BLE MR. JUSTICE SANJAY DHAR, JUDGE
Pension benefits fixed under SRO 149 cannot be withheld due to ongoing litigation unless declared unlawful by the Supreme Court; recovery of excess pay from pension is impermissible post-retirement.
Headnote:(A) SRO 149 of 1973 - Pension fixation - The petitioner challenged the refusal of respondent No.5 to authorize pension based on pay fixed under SRO 149, citing ongoing litigation as justification. The court held that unless the Supreme Court declares SRO 149 unlawful, the petitioner’s pension must be authorized. (Paras 6-8)
(B) Recovery of excess pay - The court ruled that recovery of alleged excess pay from pension is impermissible post-retirement, referencing the Supreme Court's ruling in State of Punjab vs. Rafiq Masih. (Para 9)
Facts of the case:
The petitioner, a retired employee of the Power Development Department, contended that his pension was unjustly withheld due to ongoing litigation regarding SRO 149, despite his pay being fixed according to this regulation. (Paras 2-3)
Findings of Court:
The court found that the refusal to authorize pension was unjustified and directed that the pension be released according to the pay fixed by the petitioner’s parent department. (Para 10)
Issues: The main issues were whether the ongoing litigation regarding SRO 149 justified the withholding of pension and the legality of recovering excess pay from the petitioner’s pension. (Paras 6-9)
Ratio Decidendi: The court emphasized that unless a legal declaration is made against SRO 149, the benefits accorded under it must be honored, and recovery of excess pay from pension is not permissible post-retirement. (Paras 7-9)
Result: Writ petition allowed.
ORDER :
1. The petitioner has challenged communication No.PNR-3/S-2/22/22-23/223426/2052-53 dated 09.02.2023, addressed by respondent No.5 to respondent No.3, whereby the said respondent has been asked to forward the pension case of the petitioner after ignoring the benefit of SRO-149 and to furnish the due drawn statement regarding excess pay drawn by the petitioner.
2. From the pleadings of the parties, it comes to the fore that the petitioner was an employee of the Power Development Department of J&K Government and he has retired from service. It appears that the parent department of the petitioner i.e. respondent No.3, has forwarded the pension case of the petitioner to respondent No.5, in response whereto, the impugned communication has been addressed by respondent No.5 to respondent No.3.
3. According to the petitioner, his pay was fixed in terms of SRO 149 of 1973 as was done in the case of similarly situated employees of the respondent Department. It has been submitted that the parent department of the petitioner has fixed his pay and the same has been confirmed by the Government in terms of order No.309-PDD of 1995 dated 30.08.1995 and entry of SRO 149 of 1973 stands confirmed vide the aforesaid Government Order. In this regard, the entry has been recorded in the service book of the petitioner which was forwarded to the office of respondent No.5 for release of pension as per the grade and scale of pay in which the petitioner was drawing his salary at the time of his retirement. It has also been contended that respondent No.5 has returned the pension case of the petitioner on flimsy grounds by stating that a case pertaining to SRO 149 is subjudice before the Supreme Court of India. According to the petitioner, he has nothing to do with the said case and is not, in any manner, connected with the case pending before the Supreme Court.
4. Respondent Nos.1 to 4 despite availing a number of opportunities have not filed their reply. However, respondent No.5 has contested the writ petition by filing its reply. In the said reply, it has been submitted that the query has been raised by the said respondent by virtue of the impugned communication on account of pendency of a case pertaining to SRO 149 before the Supreme Court. It has been submitted that the respondent No.5 is legally obliged to work out the correctness of the financial matters relating to fixation of pension of Government employees and in the instant case, it is fully justified in raising a query about pension case of the petitioner.
5. I have heard learned counsel for the parties and perused record of the case.
6. It is not in dispute that pay of the petitioner has been fixed by his parent department as per the pay scale provided in SRO 149 of 1973, whereby revision of pay scales has taken place. It is not the case of the respondents that any litigation is pending as regards the fixation of pay of the petitioner in the Supreme Court or for that matter in any other Court. In the impugned communication, respondent No.5 has refused to approve the pay fixation made by the parent department of the petitioner on the ground that there is some litigation relating to SRO 149 of 1973 going on in Supreme Court. It has asked the parent department of the petitioner to forward the pension case of the petitioner after ignoring the benefit of SRO 149 of 1973.
7. Unless the Supreme Court delivers a judgment declaring that the benefit accorded to all the employees under SRO 149 of 1973 is not in accordance with law, respondent No.5 cannot refuse to authorize pension of an employee on the basis of the pay fixed by his/her parent department. It is not the case of respondent No.5 that any such declaration has been made by the Supreme Court as yet. Therefore, it is not open to respondent No.5 to ask the parent department of the petitioner to ignore the benefit granted to him in terms of SRO 149 of 1973.
8. Mere pendency of a matter relating to grant of benefit under SRO 149 of 1973 to an emp
