Page 1 WP(C) No. 2703/2023 S. No. 83 Suppl. Cause List IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR WP(C) No. 2703/2023 CM No. 6451/2023 Abdul Majid Sheikh …Appellant/Petitioner(s) Through: Mr. Bilal Ahmad Malla, Advocate Vs. UT of J&K and Ors. ...Respondent(s) Through: Mr. Ilyas Nazir Laway, GA CORAM: HON’BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE O R D E R 16.04.2025 1. Heard. Admit. 2. Notice. 3. Mr. Ilyas Nazir Laway, GA, waives post admission notice on behalf of respondents. 4. Having regard to the case set up by petitioner, there is no need for further pleadings from other-side. 5. The matter, at request, is taken up for final disposal. 6. Quashment of Order no.DULB/Estt/1504/24233-37 dated 28.08.2023 issued by respondent no.2 is sought for. Respondents are also sought to be directed to release arrears of pension w.e.f. 1st April 2023, sanction cash in lieu of leave salary, Death-cum-Retirement Gratuity on the basis of Last Pay Certificate (LPC) and after sanction, respondent no.2 to submit pension case of petitioner to the office of respondent no.3, who after receipt of pension case of petitioner, to issue Pension Payment Order (PPO). 7. The case set up by petitioner is that he was appointed as Works Supervisor in respondent department vide Order dated 28.03.1987. He was made incharge Secretary Municipal Committee, Tangmarg/Gulmarg vide order dated 09.09.2010, which post was held by him till his Page 2 WP(C) No. 2703/2023 retirement on 31.03.2023. Petitioner’s pension case was forwarded to higher authorities. General Administration Department UT of J&K, by Form dated 10.05.2023 issued vigilance clearance in favour of petitioner. However, by order impugned dated 28.03.2023, respondent no.2 cancelled the promotion of petitioner given from time to time and ordered recovery of excess amount from petitioner. 8. Learned counsel for petitioner would contend that promotions given to petitioner have been made by authorities concerned after considering the length of service of petitioner and at appropriate time and stage. He has invited attention of this Court to the judgement of Supreme Court in State of Punjab v. Rafiq Masih (White Washer) etc. reported in (2015) 4 SCC 334, wherein guidelines had been laid down and as a consequence of which, the Government of India through Department of Personnel and Training issued an Office Memorandum dated 02.03.2016, whereby recoveries by employers was said to be impermissible in respect of employees belonging to Class-III to Class-IV Service (or Group ‘C’ and Group ‘D’ Service); recovery from retired employees or employees who are due to retire within one year of the order of recovery; recovery from employees when the excess payment has been made for a period in excess of five years before the order of recovery is issued; recovery in cases where an employee has wrongfully been quired to discharge duties of a higher post and has been paid accordingly, even though he should have rightfully been required to work against on inferior post; in any other case where the court arrived at the conclusion that recovery if made from employees would be iniquitous or harsh or arbitrary to such an extent as would for outweigh the equitable balance of employer’s right to recover. He has also made reference to D.S. Nakara v. UOI and others, AIR 1983 SC 130, wherein it has been said that delay in payment of pension will defeat very purpose of payment of pension. According to him, impugned action of respondents goes against the very spirit of Article 284-A of J&K Civil Service Regulations as also Articles 242 and 285 thereof. 9. It is an accepted position that gratuity and pension are not the bounties. An employee earns these benefits by dint of his long, continuous, faithful Page 3 WP(C) No. 2703/2023 and unblemished service. It has been off and on ruled by the Supreme Court in plethora of cases that pension is a right and payment thereof is not dependent upon discretion of employer/Government but is governed by rules, and a government servant coming within those rules is entitled to claim pension and that grant of pension does not depend upon any one’s discretion inasmuch as it is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for authority to pass an order to that effect and right to receive pension flows to a government servant not because of any such order but by virtue of the rules. Even in Deokinandan Prasad v. State of Bihar (1971) 2 SCC 330, it was held that right receive pension was recognized as right to property by the Constitution Bench of the Supreme Court. Reference in this regard is also made to Birbal dutt v. UOI and others, 2003 (Supp) JKJ 119; and Mubarak Ahmad Dar v. State of J&K, 2010 (II) 931, relied upon by counsel for petitioner. 10. In view of above, there is force in the case set up by petitioner and as a consequence of which writ petition is disposed of on the following lines: a) Order no.DULB/Estt/1504/24233-37 dated 28.08.2023 issued by respondent no.2, is quashed. b) Respondents shall release arrears of pension w.e.f. 1st April 2023; cash in lieu of leave salary, Death-cum-Retirement Gratuity on the basis of Last Pay Certificate (LPC) and submit the pension case of petitioner to the office of respondent no.3, and upon receipt of pension case of petitioner, respondent no.3 shall issue Pension Payment Order (PPO) with due dispatch. 11. Disposed of. (VINOD CHATTERJI KOUL) JUDGE SRINAGAR 16.04.2025 Manzoor Manzoor Ul Hassan Dar I attest to the accuracy and authenticity of this document Srinagar 09.05.2025 09:55