HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. SWP No. 1130 OF 2010 AND CMP No.1582 OF 2010 Bizal Singh Petitioners State of J&K and ors. Respondent !Mr. Nirmal Kotwal, Advocate. ^Mr. G.S.Thakur, Advocate for R-1 to 4 Mrs.Deepika Mahajan, Advocate for R 5. Mr. Justice J.P.Singh. Date: 27.04.2011 :J U D G M E N T:
The petitioner-Bizal Singh retired on superannuation from
Government Service on October 31, 2009 when he was drawing
salary in the pay scale of 3050-4910.
His pension case forwarded by the State Government to
the Principal Accountant General, Jammu and Kashmir, Jammu
was returned informing the Executive Engineer, Generation
Division, PDC Udhampur that the award of one step higher pay
scale of pay of Rs.410-700 to the petitioner vide Chief Engineer,
Electric Maintenance & RE Wing, Jammus Order No.
CEJ/DPC-I/42 of 2004 dated 23.11.2004 was unauthorized and
in violation of Rule 17-13 (1) of the Jammu and Kashmir
Financial Code, in that, the stepping up was not sanctioned by
the State Government and that action in terms of Rule 17-4 of
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the Jammu and Kashmir Financial Code be initiated to recover
the excess amount drawn by the Officer so that his claim for full
and final pensionary benefits could be authorized in his favour.
The Principal Accountant Generals Communication No.
PNRJ-I/1/11013/1441-45 dated 30th March, 2010, referred to
hereinabove, has been questioned by the petitioner seeking its
quashing besides directing the Accountant General to release
the retiral benefits including pension, gratuity taking into account
the actual last pay drawn by him at the time of his retirement.
The case set up by the petitioner in the Writ Petition is that
award of one step higher scale of pay was authorized and that
deductions suggested by the Accountant General were
impermissible. The Accountant General, in its Objections to the
Petition has, reiterating its stand appearing in Communication of
March 30, 2010, stated that the petitioner was not entitled to the
fixation of his Pension and other Retiral benefits in the absence
of State Governments specific authorization for award of one
step higher pay scale.
In their Response to the Writ Petition, the Staterespondents
have not denied the petitioners entitlement to the
award of one step higher pay scale and rather justified the grant
of one step higher grade promotion being Skilled Technician-III
in the pay scale of 3050-4910 retrospectively w.e.f. 19th July,
1980. It is further stated that Jammu and Kashmir PDD
(Subordinate Service) Recruitment Rules, 1981 were introduced
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vide SRO 381 dated 26.08.1981 in terms whereof all promotions
against available vacancies in the cadre and vacant posts were
regulated by the DPC CE M&RE Wing, Jammu which had one
member on the Committee from the Administrative Department
of the Power Development Department.
In view of what has been stated by the State-respondents
in their Response to the Writ Petition, it becomes clear that one
of the members of the DPC being a person from the
Administrative Department of the Power Development
Department, the State Government is deemed to have agreed to
the grant of one step higher pay scale to the petitioner along
with other similarly situated Officers who were held entitled to
the benefit of pay scale and pension on the basis thereof in
terms of the law laid down by this Court in Accountant General,
Jammu and Kashmir Government, Jammu versus Kartar Chand
and others, where while deciding several Letters Patent Appeals
which included LPA (SWP) No. 189/06, the recoveries sought to
be initiated at the instance of the Accountant General were held
impermissible.
The petitioners case as to his entitlement to Pension and
other Retiral benefits on the basis of award of one step higher
pay scale, which he had been getting at the time of his
retirement, having not been contested and rather acceded to by
the State Government, is, therefore, covered by what was held
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by this Court in Kartar Chands case (supra), which for facility of
reference is reproduced hereunder:-
In view of clear instructions appended to Rule 77-B of Civil
Service Regulation, it is incumbent upon every
Administrative Department to obtain the prior approval of
General Administrative Department before ordering stepping
up of the pay of an employee under it. But, whether failure to
obtain such prior approval, as a necessary consequence,
would always render the order passed for stepping up the
pay of an employee invalid? In our considered opinion it
would not be so in every case. Where otherwise entitlement
of an employee to the stepping up of his pay is not disputed
by the Administrative Department or by the office of
Accountant General, the order of stepping up of pay of such
an employee would not be rendered invalid for being taken
into account for the purposes of fixation of pension and
gratuity the reason being that matter of obtaining prior
approval is between the Administrative Department and
General Administrative Department in which the employee
has no role to play. By passing an order in violation of the
mandate of the Government instructions appended to Rule
77-B, the officer concerned may be exposing himself to the
departmental action, but it cannot per se affect the
pensionary rights of an employee to which he is otherwise
entitled. Therefore, where the right of an employee to have
his pay stepped up is not in dispute, the fact of that before
passing the order in that behalf by the competent authority,
the prior approval of General Administrative Department has
not been obtained would only be an irregularity and in such
cases the Accountant Generals office would not be justified
in not sanctioning the pension, as per the stepped up pay of
such an employee. However, where the stepping up of the
pay of an employee is found to have been wrongly made by
the Administrative Department, the failure to obtain such
prior approval would be an illegality and in such like cases
the Accountant Generals Office would be justified in not
accepting such an order as valid for the purposes of fixation
of pension.
For all what has been said above, the Principal
Accountant General (A&E), Jammu and Kashmir, Jammus
Communication No. PNRJ-I/1/11013/1441-45 dated 30th March,
2010 becomes unsustainable being in contravention of the law
settled by this Court in Kartar Chands case (supra) and is liable
to be quashed holding the petitioner entitled to Pension and
other Service benefits on the basis of the actual last pay drawn
by him at the time of his retirement on superannuation.
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This Petition, therefore, succeeds and is, accordingly,
allowed quashing Principal Accountant Generals
Communication dated March 30, 2010.
A direction shall, therefore, issue to the State-respondents
and the Accountant General to sanction the release of Pension
and other Retiral benefits in favour of the petitioner within a
period of eight weeks. In case, the Pension and other Retiral
benefits were not released to the petitioner within the stipulated
period, these will carry interest @ 6% per annum.
(J. P. Singh)
Judge
JAMMU
27.04.2011
Pawan Chopra
