HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU SWP No. 1938/2018 CM No. 2187/2020 IA No. 1/2018 Ram Parkash …..Appellant(s)/Petitioner(s) Through: Mr. Nitin Verma, Advocate vs Union of India and ors. .…. Respondent(s) Through: Mr. Eishaan Dadhichi, CGSC Coram: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE ORDER 19.03.2025 1. The petitioner through the medium of present writ petition has sought quashment of Order No. Estt-1/Kalyal/39th Bn/SSB/17-633 dated 11.11.2017 issued by respondent No. 5, whereby he has been asked to deposit the excess payment amount in the account of Commandant 39th Battalion or to furnish an undertaking that he shall make payment of said excess amount from his pension in instalments. 2. As per case of the petitioner, he had joined services with SSB as a Constable on 06.04.1974. He was given upgradation in his pay under ACP Scheme and was promoted as HC(GD) w.e.f. 01.01.1997. It has been submitted that the petitioner superannuated from services on 29.02.2012 as Sub Inspector after putting in 37 years of service. 3. It has been further submitted that consequent upon implementation of modified Assured Career Progression Scheme for the Central Government employees, vide memorandum dated 25.09.2012, pay of the petitioner was re-fixed in PB-2, in the scale of Rs. 9300-34800 Serial No. 6 2 SWP No. 1938/2018 with Grade Pay of Rs. 4600/-. Again, pay of the petitioner was re- fixed by granting him 1st ACP and 2nd ACP w.e.f. 09.08.1999 after completion of 24 years of regular service. The petitioner is stated to have been granted 3rd MACP w.e.f. 01.09.2008 after completion of 30 years of service. W.e.f. 01.09.2008, pay of the petitioner is stated to have been fixed in PB2 Rs. 9300-34800 with Grade Pay of Rs. 4600/-. Vide memorandum dated 11.11.2017, the pension, retirement gratuity and commutation of pension in respect of the petitioner was again revised. It has been further submitted that vide impugned notice dated 11.11.2017, the respondents have recovered excess payment, which action according to the petitioner is in complete violation of the law laid down by the Supreme Court. 4. The respondents in their reply have submitted that inadvertently or by official mistake, the petitioner was granted 2nd Financial up-gradation under ACP scheme w.e.f. 09.08.1999 i.e. upon completion of 24 years of service in pay scale of Rs. 5500-175-9000/-. It has been submitted that as per provisions relating to ACP scheme, the petitioner had to first qualify 1st class examination which was essential condition for getting this benefit. However as per service record of the petitioner, he had appeared in 2nd class departmental examination and was declared passed in the year 2007. He had to further qualify 1st class examination for his better future prospects and for getting promotion to the rank of Sub-Inspector or for getting next financial benefits under then existing ACP scheme as per relevant Recruitment Rules. 3 SWP No. 1938/2018 5. It has been submitted that an application was made by one Madan Lal, Ex. Sub-Inspector, highlighting the disparity in pay fixation under 2nd ACP scheme, alleging that some of the retirees have been granted ACP benefits from due date i.e. completion of 24 years of regular service but he was denied the same. Upon coming to know about this disparity, the pay structure of the petitioner was re-examined and it was found that he has not passed 1st class examination as on 09.08.1999. According to the respondents, the petitioner had passed said examination in the year 2007 and as per the applicable provisions, he was eligible to get 2nd financial benefit under ACP scheme from the date of passing of the said examination i.e. w.e.f. 28.02.2007. Thus, according to the respondents, an error has crept in while fixing the pay particulars of the petitioner and he has drawn excess amount of Rs. 10,70,734/-. Break-up of the excess amount has been given in the reply. It has been further submitted that the petitioner, pursuant to the impugned communication, has also filed an undertaking thereby agreeing to recovery of the excess amount from his pension in instalments. 6. I have heard learned counsel for the parties and perused record of the case. 7. The stand taken by the respondents is that the petitioner was granted benefit of 2nd ACP from a date, from which he was not entitled to get the same. According to the respondents, the petitioner was entitled to 2nd ACP scheme only after qualifying 1st class examination which he did in the year 2007 but inadvertently, he was granted 2nd ACP scheme 4 SWP No. 1938/2018 w.e.f. 1999. On this basis, it has been claimed that the petitioner has drawn excess emoluments during his service career, which are required to be recovered from him. 8. Without going into the question, as to whether or not stand taken by the respondents with regard to date of fixing of pay of the petitioner on the basis of 2nd ACP scale is correct, one thing is clear that the petitioner has superannuated from his service in the year 2012, whereas the impugned communication has been issued on 11.11.2017 i.e. after 5 years of his retirement. The Supreme Court has, in case of “Thomas Daniel vs. State of Kerala & Ors.’ reported in 2022 LiveLaw (SC) 438 relying upon the ratio laid down by the said court in the case titled, ‘State of Punjab and ors. vs. Rafiq Masih and ors.’ reported in (2015) 4 SCC 334, held that recovery from the retired employees or the employees who are due to retire within one year of the order of recovery, is not permissible. 9. It is not the case of the respondents that the petitioner has drawn excess pay by playing fraud upon the respondents. The mistake, if any, has crept in on account of the reasons attributable to the respondents. At this stage, after five years of the retirement of the petitioner, he cannot be made to suffer by deducting a huge amount of Rs. 10,70,734/- from his paltry amount of pension. Doing so, will render the petitioner without any succour. In the light of the ratio laid down by the Supreme Court in Rafiq Masih’s case (supra) as followed in Thomas Daniel’s case (supra), it is not permissible for the respondents 5 SWP No. 1938/2018 to recover the excess amount on account of salary that has been paid to the petitioner during his service career. 10. For the foregoing reasons, the writ petition is allowed and the impugned communication dated 11.11.2017 issued by respondent No. 5 is quashed. 11. Disposed of. (SANJAY DHAR) JUDGE Jammu 19.03.2025 Neha-II Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No NEHA KUMARI 2025.03.20 13:49 I attest to the accuracy and integrity of this document