Post-retirement recovery of excess pay from innocent retired employee impermissible; pension based on last pay drawn unless fraud proven.

ORDER

Per: - Rajinder Singh Dogra, Judicial Member

1. The SWP No.2372/18 was transferred from the Hon’ble High Court of Jammu & Kashmir at Jammu and was registered as T.A No.9117/2020 by the Registry of this Tribunal.

2. The present matter was filed before the Hon’ble High Court seeking following relief: -

“PRAYER

It is therefore prayed that Hon'ble Court be pleased to issue:

1/Writ of certiorari quashing and setting aside the communication no PNRJ-ii/c-3/2016-19/1063-64 dated 16^th October, 2018,

2/ Writ of Mandamus directing and commanding the respondents to settle and release pension and related dues as per last pay drawn at the time of retirement, along with interest @ 10% p.a for delayed payment

3/ Any other appropriate Writ, Direction or Order be passed in favour of the petitioner and against the respondents as found expedient in the circumstances of the case.

The petitioner be also awarded costs of the litigation.

3. The facts of the case as pleaded by the petitioner in his pleadings are as follows: -

a) The applicant, Banarasi Dass, is a permanent resident of the erstwhile State of Jammu and Kashmir and a citizen of India, who remained in the service of the Public Health Engineering Department for more than three decades. He was initially engaged as a Helper in the year 1985 and thereafter continued to discharge his duties to the satisfaction of the department. Over the years, he earned various service benefits and his engagement was regularised, entitling him to all consequential service and pensionary benefits admissible under the applicable service rules.

b) During the course of his service, the Chief Engineer, PHE Department, had issued circulars dated 18.03.1993 and 11.06.1993 providing for placement of certain categories of field staff in higher pay grades. Despite being similarly situated, the applicant was denied the benefit of such placement, compelling him to approach the High Court by filing SWP No. 2268/2012. The said writ petition was allowed, and the respondents were directed to accord him the same treatment as extended to other similarly placed employees. Pursuant thereto, the benefit was granted to the applicant and his pay was stepped up accordingly, which continued uninterruptedly for several years without objection from the department.

c) The applicant ultimately superannuated from service on 31.07.2018 after rendering long and blemish-free service. Upon retirement, he legitimately expected the prompt settlement and release of his pensionary benefits on the basis of the last pay drawn by him at the time of superannuation. However, to his utter shock and dismay, his pension case was returned by the Accountant General, J&K, vide communication dated 16.10.2018, directing re-fixation of his pay and pension by placing reliance upon Government Order No. 277-F of 2018 dated 06.06.2018.

d) The applicant has challenged the said action as wholly illegal, arbitrary and unconstitutional. According to him, the Government Order relied upon by the respondents pertains to a different department and was issued in compliance with a specific judgment, neither being in rem nor having general applicability to all government departments. The impugned direction for re-fixation, therefore, lacks jurisdiction and legal foundation. It is further pleaded that similarly situated retirees have been granted pension on the basis of last pay drawn, without applying the impugned Government Order, thereby resulting in hostile discrimination violative of Articles 14 and 16 of the Constitution of