Recovery of excess pension from family pension is impermissible when the recipient is not at fault for the overpayment.

ORDER :

1. The husband of the petitioner, namely, Abdul Rehman S/o Ghulam Wani had attained superannuation in the year of 31.01.2009 as Section Officer from Jammu and Kashmir Board of School Education, respondents herein and he came to demise on 20.01.2022.

2. After the demise of Abdul Rehman, the case of the petitioner for grant of family pension, being wife of the deceased, was processed and during the processing, it came to the fore that the deceased employee had drawn excess pension with effect from 01.02.2009 till his death. The respondents, as such, vide order No. 72-B dated 17.02.2023 revised the monthly pension of deceased employee and accordingly directed for release of family pension in favour of the petitioner, after deduction of the excess pension drawn by the deceased employee, with effect from 01.02.2009 till his death.

3. The order No. 72-B dated 17.02.2023 has been impugned by the petitioner through the medium of present petition on the ground that the excess pension paid to the deceased employee could not have been recovered from the family pension of the petitioner in terms of the various pronouncements of the Apex Court, particularly when the fault, if any, was that of the respondents.

4. The respondents have filed the response stating therein that while examining the record during processing of the family pension case of the petitioner, it transpired that the deceased husband of the petitioner had received excess pension with effect from 01.02.2009 till his death and accordingly vide order dated 17.02.2023, the pension payable to the deceased employee was revised and excess pension paid to the deceased employee was ordered to be recovered from the family pension payable to the petitioner vide order dated 17.02.2023.

5. Mr. M Tariq Mughal, learned counsel for the petitioner has argued that the excess pension drawn by the deceased husband of the petitioner was not on account of any fraudulent act or omission on the part of the husband of the petitioner but it were the respondents who had themselves wrongly fixed the pension, which was received by the husband of the petitioner till his death.

6. Per contra, Mr. B. S. Bali, learned counsel for the respondents has argued that the in terms of Article 291 of the Jammu and Kashmir Civil Services Regulations, respondents are well within their power to revise and re-fix the family pension payable to the petitioner. Further, there is no illegality in the action of the respondents in recovering the excess pension drawn by the deceased husband of the petitioner, from the family pension payable to the petitioner.

7. Heard learned counsel for the parties and perused the record.

8. This is the admitted case of the parties that the excess pension was received by the deceased husband of the petitioner with effect from 01.02.2009 till his death. There is no allegation levelled by the respondents that husband of the deceased had drawn the excess pension either on account of any fraud or misrepresentation, but it is evident that the pension was fixed by the respondents and fault, if any, in fixing the wrong pension was solely of the respondents.

9. The husband of the petitioner as was not responsible for fixation of the higher pension, as such, neither he nor the petitioner can be made liable for the wrong committed by the respondents. The recovery of excess amount of pension received by the deceased from the family pension of the wife of deceased employee would be extremely harsh. It would be apt to take note of the judgments of the Hon’ble Apex Court in State of Punjab and others vs Rafiq Masih (White Washer), AIR 2015 SC 696 and Thomas Daniel vs. State of Kerala, 2002 Livelaw (SC) 438 Article 291 of the J&K CSR is not applicable in the present facts of circumstances of the case, as it is not the petitioner who has received the excess pension.

10. In view of this, this Court is of the considered view that the respondents could not have recovered the excess pension received by the husba