1 S. No. 33 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR WP(C) No.3342/2023 CM No.8021/2023 GULZAR AHMAD KHAN …Petitioner(s) Through: Mr. Mr. M. A. Beigh, Advocate. Mr. Sofi Manzoor, Advocate Vs. UT OF J&K AND ORS. ...Respondent(s) Through: Mr. Ilyas Nazir Laway, GA Ms. Nowbahar Khan, Assisting Counsel. CORAM: HON’BLE MR JUSTICE JAVED IQBAL WANI, JUDGE O R D E R 22.08.2025 (ORAL) 1. In the instant petition filed under Article 226 of the Constitution, the petitioner herein claims to have been appointed as a driver on consolidated basis of Rs.1000/- per month by the Administrator of the Municipal Council, Baramulla, in terms of Order No. TAC/Bla/99- 2000/153-54 dated 31.05.1999, whereafter his wages came to be enhanced from time to time while claiming further that services came to be regularized as a driver in terms of Order No. MC-Bla/2007- 08/4235-42 dated 31.12.2007 in the pay scale of Rs. 2550-3200, which regularization came to be accorded by the then Chief Executive Officer of the Municipal Council with the authorization of the Director Urban Local Bodies, Kashmir, Respondent 2 herein and that after rendering services as a driver, retired on superannuation on 03.04.2024, however, upon his retirement, the respondents did neither release service benefits in his favour nor did they updated his service book while being in service, and also failed to grant him in-situ promotions as also the increments thereof, purportedly owing to the registration of the FIR No. 19/2011 in the Crime Branch and seizure of the record of Municipal Council Baramulla, therein the said FIR, and that though he got his service book released by the intervention of the court of Additional Special Judge Anti Corruption Baramulla vide order dated 03.11.2020 he approached the respondents for release of 2 his retiral benefit, as also for reconstruction of his service book, having got damaged in the floods of 2014 while being with the respondents, the respondents did neither reconstruct his said service book nor made necessary entries therein, as also failed to release the service benefits in his favour including the retiral benefit. 2. Respondents have filed reply to the petition, wherein the petition is being opposed on the ground that none of the fundamental, constitutional and statutory rights of the petitioner stands violated. It is, however, being stated that the basic engagement of the petitioner on consolidated wages in the year 1991 was made in violation of rules and norms, inasmuch as having been made after imposition of ban by the Government upon such engagements, stating further that the regularization of the services of the petitioner as well came to be effected in absence of a policy, rule, or law on the subject, and that such cases of illegal appointments became subject matter of an inquiry before the Committee constituted by the Government on 07.07.2021, as also the subject matter of investigation in FIR No.19/2011, and as such, owing to the said reasons, the petitioner was not found entitled to such benefits and the dismissal of petition thus, is being sought in the objections. Heard counsel for the parties and perused the record. 3. While making his submissions counsel for the petitioner produced the copy of FIR No.19/2011 supra and would submit, that even though the FIR came to be registered in the year 2011, it has no bearing upon the case of the petitioner yet and even till date the petitioner neither was during the course of his employment with the respondents implicated/arraigned, as an accused nor else even after his retirement any inquiry was initiated in the matter pursuant to the Government order dated 07.07.2021 and that the respondents have not, up till now, found the petitioner either engaged or regularized illegally, and therefore, under these circumstances, the respondents cannot, by any stretch of imagination, withhold the retiral benefits of the petitioner, or else, refuse to reconstruct his service book and make necessary entries therein. Counsel for the petitioner in support of his submission, would heavily rely upon the decision of the Division Bench of this 3 Court passed in cases titled as “Ghulam Mohi ud din Lone Vs. State of J&K and Ors., decided on 11.12.2020”. 4. On the contrary, the counsel for the respondents would rely upon the stand taken by them in the objection filed in opposition to the petition. 5. Perusal of the record available on file manifestly suggests that as on date the petitioner herein has not been found involved in the FIR No.19/2011 or else implicated/arraigned, as an accused therein. It has also not been denied by the respondents that any disciplinary proceedings in regard to either the engagement or regularization of the petitioner stands initiated against his either during his service or pending after his retirement. Though Article 168-A and 168-D of the J&K Civil Service Regulations applicable to the Government employees makes it explicit that the Government is entitled to order the recovery from the pension of an officer any amount on account of loss found in judicial or departmental proceedings to have been caused to Government by the negligence or fraud of an such officer during his service, the said Articles however, further provides that if such departmental or judicial proceedings are not initiated against the officer while he is in service or on duty, the same shall not be instituted without sanction of the Government and shall be instituted within a year from the date he was last on duty, and that the proceedings must not pertain to an event which took place not more than one year before the date of which the officer was last on duty. 6. 6. In presence of the aforesaid provisions of the Civil Service Regulations and the aforesaid facts that no judicial or departmental proceedings have had been either instituted or initiated against the petitioner herein while being in service or within one year from the date the petitioner was last on duty, it can safely be said that withholding of the retiral benefits of the petitioner is not tenable in law, in that, law is settled that the retiral benefits of an employee are not bounties to be given by an employer to the employee, as it is earned by the employee by dint of his long, continuous, and unblemished service. The Apex Court in case titled as “Deokinandan Prasad Vs. State of Bihar” reported in AIR 1971 SC 1409 has authoritatively ruled that pension is a right and payment of it does not depend on the discretion of the Government but is governed by the 4 rules and the Government servant coming within those rules is entitled to claim pension as of right while holding further that grant of pension does not depend on anyone's discretion. Further, the Apex Court in case titled as “U. P. State Sugar Corporation Ltd. And Ors. Vs. Kamal Swaroop Tandon”, reported in 2008(2) SCC 41, has also held that retiral benefits are earned by an employee for long and meritorious service, and gratuity is paid to such an employee for his dedicated and devoted work and that even though the departmental inquiry can be initiated against the Government servant after his superannuation, pension can be reduced and gratuity can be withheld, and that such proceedings cannot only be initiated before the employee retires but also continues after his retirement and can be initiated after his retirement as well provided any pecuniary loss recoverable caused to the Government is recoverable from the said Government employee, which loss had been caused due to his negligence or service misconduct. 7. 7. Risking repetition and as noticed above, neither any judicial nor any departmental proceedings have had been initiated/instituted against the petitioner by the respondents while being in service or even after his retirement, the respondents cannot thus withhold the retiral benefits of the petitioner, merely on the ground that his initial engagement and regularization was dehors the rules and in the instant case, the said initial engagement admittedly have had been made in the year 1999 and regularization accorded in the year 2007 and the petitioner retired in the year 2024. 8. Viewed thus for the aforesaid reasons, the instant petition deserves to be allowed. 9. Accordingly, by issuance of the writ of Mandamus, respondents are commanded to reconstruct the service book of the petitioner and make all necessary entries therein in accordance with the applicable rules, and consequently release all retiral benefits, including the arrears thereof in favour of the petitioner to which the petitioner is entitled thereto, within a period of two months from the date a copy of this order is produced by the petitioner before the respondents. Should the respondents fail to carry out the aforesaid directions within a period prescribed above the respondents shall in that event be liable to pay an 5 interest to the petitioner over the retiral benefits and arrears at the rate of 7% from the date same became due to the petitioner till the date of actual payment thereof. 10. Disposed of along with all connected application/s (JAVED IQBAL WANI) JUDGE SRINAGAR 22.08.2025 Ishaq Whether the judgement is speaking ? Yes Whether approved for reporting ? Yes