Post-retirement recovery of advance increments for higher qualifications from pre-1992 in-service employees invalid absent fraud; limited to 24 months pre-retirement; quashed OM cannot justify deductions; refund with interest and retiral benefits restoration directed.

ORDER (FINAL)

(Delivered by Hon’ble Mr. Rajinder Singh Dogra, Member-J)

1. Against the illegally recovered amount from the petitioners respectively on the basis of OM No. A/9 (81)-1-888 dated 28- 7-2006, applicants initially filed SWP No. 70/2019 before the Hon’ble High Court of J&K at Jammu, which on transfer to this Tribunal has been numbered as T.A. No. 1756/2020.

2. Brief of the case in nutshell taken by learned Counsel for the applicant reiterated in TA that the petitioner No. 1 was appointed as Assistant Surgeon in the Health and Medical Education Department on 19-9-1978. During his service, he acquired higher qualification (MD) in the year 1997 and petitioner No. 2 was appointed as Assistant Surgeon in the Health and Medical Education Department on 5-9-1979. He passed his MD in October, 1992 when he was in service. The Jammu and Kashmir, Civil Services (Revised Pay) Rules were framed and notified vide SRO 91 dated 22-3-1982. Rule 12 of the aforesaid Rules provides that the Advance Increment (s) on obtaining of Higher Qualification either while in service or at the time of initial appointment would continue to be allowed in the revised scales. Thereafter the Rules of 1982 were followed by the J&K Civil Services (Revised Pay) Rules, 1987 notified vide SRO 370 dated 17-7-1987 and the J&K civil Services (Revised Pay) Rules, 1992 which were notified vide SRO 75 dated 30-3-1992 by virtue of which the benefit of Advance Increment to the fresh recruits was temporarily withdrawn. Then the respondent No. 2 issued OM No. A/37 (92)-633 dated 15-9-1992 whereby it was clarified that the terms "Fresh Recruitments" "Fresh Appointments", "New Appointments", "Future Appointments", appearing in the Rules of 1992 should mean appointment as have been made or shall be made on or after 31-3- 1992. Further the Agricultural Production Department issued a communication dated 30-5- 2005 to the Director of Agriculture, Jammu in which it was clarified that Advance Increment for acquiring higher qualification by the in-service employees and fresh recruits made from 1-4-1992 was inoperative and the Director was asked to take further action in the matter. That apprehending the withdrawal of the benefit of the Advance Increment given to the in-service officers, who were appointed prior to the Rules of 1992 but obtained the higher qualification after that, all such officers represented to the Govt. The respondent No. 2 vide its OM dated 28-7-2006 rejected the representations of the officers and waived off the benefit of advance increments and it was further ordered that the fixation of their pay should be reviewed and regulated correctly and the excess payment made with effect from 12-9-2001 should be recovered.

3. Being aggrieved, the applicant has filed the present Transfer Application, seeking the following reliefs: -

i. To refund the amounts of Rs. 1,63,119/- and Rs. 1,12,561/- which have been illegally recovered from the petitioners respectively on the basis of OM No. A/9 (81)-1-888 dated 28-7-2006 which stands already quashed by this Hon'ble Court vide judgment and order dated 31-8-2017 with interest @ 18% P.A with effect from the date the same has been received by the respondents;

ii. To fix the last pay drawn of the petitioner by adding the benefit of two advance increments which have been illegally deducted by the respondents and thereafter, calculate afresh all the pensionary/retiral benefits admissible to the petitioners and pay the same to them alongwith arrears from their