SDA directed to release pensionary benefits including gratuity to the widow and children of petitioner pump operator
Srinagar: Coming to the rescue of a widow and five children of an expired and retired government employee, the J&K High Court has held that excess salary paid due to mistake in the pay scale up-gradation cannot be recovered due to wrong interpretation of rules.
Justice Wasim Sadiq Nargal while quashing a decade long recovery order by the Srinagar Development Authority (SDA) which directed recovery of an excess amount of Rs 6,08,022 from a retired (now) expired Pump Operator, Mohammad Ramzan Tantray, said “recovery of excess amount paid to an employee due to a mistake or wrong interpretation of rules cannot be made”.
Tantray was engaged as daily-wager in SDA in 1976 and in 1981 was appointed by the then Vice-Chairman as Chowkidar.
Further in 1993, sanction was accorded for the change of his designation to Pump Operator, in his own pay and grade “in view of his having technical skill in operating pumps”.
In 1994, sanction was granted to six posts of pump operators from the grade of Rs 750-940 to the grade of Rs 940-1400. The order included Tantray.
He discharged his duties as pump operator and received the salary as attached to the post.
Tantray retired from service in May 2014. He received a letter from Examine/Chief Accounts Officer (CAO), Local Fund Audit and Pensions, Srinagar on October 15, 2014.
The letter said “Tantray stands upgraded from pay scale of Rs 750-940 to the pay scale of Rs 940-1400 against the rules in vogue. The Financial Advisor/CAO, SDA shall effect recovery from him on account of up-gradation w.e.f. 01.05.1994 till the date of superannuation and the excess payment drawn”.
Tantray inter-alia sought quashing the order by the court. He also sought a direction to the respondent authorities to release all the pensionary benefits he was supposed to receive.
Mohammad Ashraf Bhat, his counsel, argued that the recovery order had been passed in a hasty manner. No rules and regulations on the subject have been applied. “The order is illegal, unlawful and unconstitutional,” he argued.
The petitioner has been subject to a great loss despite his long service of 33 years to the department, he argued.
The state attorney counter-argued and said that the petitioner was illegally upgraded from pay scale of Rs 750-940 to Rs 950-1400 (pre-revised).
The SDA, after re-examination of the case, communicated to the answering respondent in March 2015. The communique said that an amount of Rs 6,08,022 – on account of excess pay drawn by the petitioner — be recovered from him while authorising his pension, he argued further.
Tantray expired during the protracted legal battle but his widow Mst Raja and her five orphaned children continued with their struggle.
Justice Nargal in his judgment noted that during the period of the petitioner’s service, respondents have never questioned his upgradation, as being against rules.
“Moreover, there is no enquiry conducted in the matter during his service tenure and the question of holding any enquiry after retirement does not arise at this belated stage,” he observed.
“The respondents have failed to explain as to how the upgradation of the petitioner is contrary to the rules and if so, against which rules. In absence of any specific stand by the respondents with regard to the upgradation of the petitioner, the impugned letter dated 15.10.2014 cannot sustain in the eyes of law,” he said.
He reiterated the settled proposition of law which say’s “the benefit of promotion and consequential monetary benefits cannot be taken away in an arbitrary and whimsical manner”.
He concluded that there is no allegation about misrepresentation on the part of the petitioner. “By no stretch of imagination, consequential benefits can be taken away at this belated stage after retirement of the petitioner.”
The court directed for release of all the pensionary benefits including gratuity to the widow and her children with Tantray designated as pump operator at the time of his superannuation.
