GHULAM MOHAMMAD LONE vs UNION TERRITORY OF J AND K AND ORS. (HOUSING AND URBAN DEVELOPMENT)

HIGH COURT OF JAMMU &KASHMIR AND LADAKH AT
SRINAGAR
Reserved on: 20.04.2026
Pronounced on:08.05.2026
Uploaded on: 08.05.2026
Whether the operative part
or full judgment is
pronounced: Full
WP(C) No.1803/2025
GHULAM MOHAMMAD LONE ...PETITIONER(S)/APPELLANT
Through: - Mr. M. A. Beigh, Advocate.
Vs.
UT OF J&K AND OTHERS …RESPONDENT(S)
Through: - Mr. Ilyas Laway, GA.
CORAM:
HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) The petitioner has challenged order No.DULB/Acctts/
224 of 2025 dated 08.03.2025, issued by respondent No.2,
whereby retrospective effect to promotion of the petitioner
as Secretary granted vide Order No.DULB/Estt/1704 dated
15.11.2010 with effect from 07.08.1996, has been
rescinded ab initio and the excess amount drawn by the
petitioner on account on retrospective effect of his
promotion has been directed to be recovered from his DCRG
emoluments.
2) It appears that the petitioner was initially appointed
as Junior Assistant in the pay scale of Rs.800-1500/ for 89
WP(C) No.1803/2025 Page 1 of 12

days vide order No.511/DLB/Estt of 1988 dated
28.03.1988. The said order was continued in terms of Order
No.NAC/G/88/176-77 dated 02.07.1988 with effect from
29.06.1988 and later on it was confirmed by Director, Local
Bodies, Kashmir, vide No.DLB/Estt/1708/3407 dated
21.02.1991. Vide order No.DLB/Estt/1708/236 of 1995
dated 30.08.1995, the petitioner was promoted as Senior
Assistant in the pay scale of Rs.1200-2040 retrospectively
with effect from 12.08.1994. Thereafter he was further
adjusted as Secretary-cum-Clerk in NAC, Sumbal, by the
Administrator, vide order No.NAC/S/96/435-36 dated
07.08.1996 followed by order No.DLB/Estt/1708/3711
dated 05.11.1996 in the pay scale of Rs.1400-2600 with
effect from 07.08.1996.
3) The petitioner availed in-situ promotion under SRO 14
dated 15.01.1996 from the pay scale of Rs.5000-8000 to
the pay scale of Rs.5150-8300 vide order No.DULB/Estt/
NF/321 of 2006 dated 11.05.2006 with effect from
01.09.2005. Thereafter the petitioner was placed as I/C
Secretary in his own pay and grade vide order
No.DULB/Estt/1485/811 of 2009 dated 15.12.2009 read
with order No.DULB/Estt/820 of 2009 dated 18.12.2009.
The petitioner was thereafter given the look after charge of
the post of Executive Officer in MC, Wattergam, vide
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Government Order No.162-HUD of 2010 dated 23.04.2010
and thereafter he was placed in the pay scale of Rs.6500-
10500 attached to the post of Secretary, in terms of order
No.DULB/Estt/1708-II dated 15.11.2010 retrospectively
from 07.08.1996.
4) The petitioner was finally prematurely retired from his
service in terms of Government Order No.365-JK/GAD of
2022 dated 31.03.2022, when he was functioning as
Incharge Executive Officer, Municipal Committee, Frisal.
5) It is further case of the petitioner that in the year
1992, in terms of Government Order No.160-HUD/LSG of
1992 dated 30.11.1992, he along with his other colleagues
was deputed to New Delhi for attending a course called
‘Diploma in Local Self Govt. (LSGD)’. The petitioner is stated
to have qualified the said course and after his return, he as
well as his other colleagues were granted benefit of two
advance increments by the respondents on the basis of
Government Order No.760-HUD/LSG of 1981 dated
29.10.1981.
6) The petitioner has challenged the impugned order on
the grounds that the same has been passed in derogation
of the rules and the legal position without following the
principles of natural justice, that too after he had already
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superannuated from service. It has been contended that the
orders of promotion and release of grades in favour of the
petitioner were issued more than 15 years back, therefore,
no recovery could have been effected from him, that too
from his retiral benefits which is otherwise forbidden in
terms of the law laid down by the Supreme Court.

7) It has been further contended that the action of the
respondents with regard to cancellation of two advance
increments granted to the petitioner and initiation of
recovery of the same by making fresh entry in his service
book is illegal and unjustified. It has been submitted that
pension case of the petitioner was forwarded with the
benefit of said two increments and now refixing of the same
after his retirement is impermissible as the same amounts
to violation of rules and regulations on the subject. It has
been submitted that the respondents have fixed the
monthly pension of the petitioner without the benefit of
promotions granted to him during his active service, after
withdrawing the benefit of two advance increments which
has put the petitioner to great financial loss.
8) The respondents, in their reply to the writ petition,
have submitted that the petitioner was illegally placed in
the pay scale of Rs.6500-10500/ in terms of order dated
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15.11.2010 and he got retrospective effective of promotion
from 07.08.1996 in an illegal manner against the rules.
Regarding drawl of two advance increments, the
respondents have submitted that the matter was taken up
with the Administrative Department vide communication
dated 02.01.2023 and the Administrative Department, vide
communication dated 29.01.2024, has clarified that the
said the Government Order was applicable in respect of the
candidates who have already passed the course before
issuance of the said Government Order and that there is
no mention in the said order that the benefit will also be
given to the candidates who will pass LSGD course in
future. Pursuant to this clarification, a circular was issued
to all ULBs vide communication dated 22.02.2024 that
Government Order granting two increments is applicable
only in respect of such officials who have already undergone
the course before the issuance of said order. It is being
claimed that the petitioner was not falling in that category.
Consequently, case of the petitioner was reviewed and the
advance increments were withdrawn/cancelled.
9) It has been further contended that the petitioner has
unilaterally availed the grade benefit retrospectively from
07.08.1996, even though there was no mention of grant of
retrospective effect in order dated 15.11.2010. Accordingly,
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the order granting retrospective effect to the promotion of
the petitioner as Secretary has been rescinded in terms of
impugned order dated 08.03.2025 with a direction to
recover the excess amount drawn by him.
10) Heard and considered.
11) The question which is required to be determined in
this case is as to whether the respondents are legally
justified in effecting recovery from the pension and
pensionary dues of the petitioner after he has retired from
service. The Supreme Court in has, in the case of State of
Punjab & Ors vs. Rafiq Masih (White Washer), AIR 2015
SC 696, while dealing with the aforesaid issue, summarized
the situations wherein recovery by the employer would be
impermissible in law. The situations enumerated by the
Supreme Court are as under:
(i) Recovery from employees belonging to Class-III and
Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees
who are due to retire within one year, of the order of
recovery.
(iii) 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.
(iv) Recovery in cases where an employee has
wrongfully been required to discharge duties of a
higher post, and has been paid accordingly, even
though he should have rightfully been required to
work against an inferior post.
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(v) In any other case, where the Court arrives at the
conclusion, that recovery if made from the employee,
would be iniquitous or harsh or arbitrary to such an
extent, as would far outweigh the equitable balance
of the employer's right to recover.
12) In view of the aforesaid legal position laid down by the
Supreme Court, it is clear that recovery of the excess
amount drawn by an employee, who has already retired
from service, is impermissible in law.
13) Admittedly, the petitioner has superannuated from
service on 31.03.2022 whereas the impugned order of
recovery has been issued on 08.03.2025. Therefore, so far
as the recovery of excess pay drawn by the petitioner on
account of his alleged illegal promotion to the post of
Secretary with retrospective effect with effect from
07.08.1996 or on account of drawl of two advance
increments cannot be effected against him, particularly
when there is nothing on record to show that the petitioner
connived with the concerned officers at the time when he
was given promotion to the post of Secretary retrospectively
or when two advance increments were released in his
favour.
14) So far as fixation of pension of the petitioner is
concerned, Government Instruction No.1 to Article 242 of
J&K CSR provides that there is an absolute bar to check
the correctness or otherwise of the past emoluments
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beyond 24 months preceding the date of retirement.
However, vide S.O.129 dated 28.03.2022, Government
Instruction No.2 has been incorporated to Article 242 of the
J&K CSR, which reads as under:
"Government Instruction No. 2.-- It has been observed
that departments have been extending benefit of
deleted/withdrawn SROs/Government Orders etc. to
the employees beyond the date of deletion/
withdrawal due to which a huge loss is being inflicted
on the Government exchequer.
In order to safeguard the Government exchequer
against the loss, the restriction of limiting the exercise
of checking the correctness of the Pay emoluments to
24 months preceding the date of retirement by the
office of Accountant General shall not be applied in
the cases where undue benefit of deleted/withdrawn
SROs/Government Orders etc. beyond the date of
deletion/withdrawal has been granted to employee."
15) The aforesaid Government Instruction came up for
interpretation before the Division Bench of this Court in the
case of ‘ UT of J&K & Ors. Vs. Maqbool Sheikh & Ors .
(WP(C) No.936/2025 with connected cased decided on
06.03.2026.) The Division Bench, while interpreting
Government Instructions 1 and 2 incorporated to Article
242 of the J&K CSR, observed as under:
“12.As is evident, the Govt. Instruction No.1
to Article 242 places restraint upon the
employee/pension sanctioning authority from
undertaking exercise of examining the correctness
of the employments for a period more than 24
months preceding the date of retirement.
13.The term 'correctness of emoluments' applies to
instances where an employee was assigned an
incorrect pay scale or where arithmetical and
clerical errors occurred during pay fixation.
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However, it does not extend to cases where an
employee was granted unauthorized dual benefits,
nor does it apply to a broad class of employees; its
scope is limited to the individual level. The
Government Instruction No.1 would cover a
situation where the employee was granted the
benefit of wrong pay scale for instance in terms of
SRO 59 or granted wrong in-situ promotion thereby
resulting into grant of higher pay scale and in these
cases, the employer would be debarred from
undertaking any exercise to examine the
correctness of the emoluments beyond 24 months
prior to the date of retirement, but in cases where a
particular class of employees has been granted
dual benefits to which it was never entitled to, it
would not fall within the meaning of 'correctness of
emoluments' so as to restrict the employer from
undertaking any exercise to examine the
correctness of the emoluments beyond 24 months
prior to the date of retirement and the employer
would be within its right to examine and point out
any such mistake. The respondents cannot be
allowed to benefit indefinitely from an
administrative error; such unjust enrichment is
legally unsustainable putting unnecessary burden
on the state exchequer and must be rectified.
14.The Government, while retaining Government
Instruction No. 1 to Article 242 of the CSR,
subsequently incorporated Government Instruction
No. 2, as extracted hereinabove. By doing so, the
Government has explicitly excluded the
contingencies contemplated under Government
Instruction No. 2 from the ambit of
Government Instruction No. 1, which exclusion was
otherwise only implicit in Government Instruction
No. 1.”
16) From the foregoing analysis of the legal position, it is
clear that in a case where benefit has been extended to a
government employee under deleted/withdrawn
SRO/Government Order etc. beyond the date of
deletion/withdrawal, the restriction of limiting the exercise
of checking the correctness of pay emoluments to 24
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months preceding date of retirement by the office of
Accountant General is not attracted. However, in all other
cases, Government Instruction No.1, which restricts
checking of correctness of pay emoluments 24 months
preceding the date of retirement would certainly apply. Had
it been the intention of the rule making authority to permit
verification of correctness of pay emoluments of a retiree
without any restriction in time period, in that case, while
incorporating Government Instruction No.2 to Article 242,
st
the 1 Government Instruction would have been deleted by
it. The fact that Government Instruction No.1 has been
retained, means that restriction regarding check period of
24 months would continue to apply in all cases other than
those covered under Government Instruction No.2
17) Turning to the facts of the present case, the
respondents by virtue of the impugned order have sought
to recover the excess amount drawn by the petitioner and
to re-fix his pension in view of cancellation of his promotion
order dated 15.01.2010, which the petitioner has availed
retrospectively with effect from 07.08.1996. Thus, it is not
a case where because of cancellation or modification of a
Government Order or SRO has resulted in withdrawal of
benefit of promotion to the petitioner but it is a case where
the respondents have sought to withdraw/rescind the
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promotion of the petitioner on the ground that the same
was not legally due to him. This has been done without
issuing any prior notice and without giving an opportunity
of hearing to the petitioner. Therefore, the Government
Instruction No.2 cannot be made applicable to the case of
petitioner. In view of Government Instruction No.1, while
calculating pay and pension of the petitioner, the
respondents cannot check correctness of his emoluments
beyond 24 months prior to the date of his retirement.
18) In the present case, the respondents, by passing the
impugned order, are seeking to undo the promotion granted
in favour of the petitioner in the year 2010, which is about
12 years prior to his superannuation. Thus, the
respondents cannot either refix pay of the petitioner or refix
his pension by taking into account impugned order dated
08.03.2025, which is not only in the teeth of law laid down
by the Supreme Court in Rafiq Masih’s case (supra) but it
is contrary to Government Instruction No.1 to Article 242
of J&K CSR besides being violative of principles of natural
justice.
19) For what has been discussed hereinbefore, the writ
petition is allowed and the impugned order dated
08.03.2025 is set aside. The respondents are prohibited
from making any recovery from the pension and retiral
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benefits of the petitioner and they are further directed to
process the pension case of the petitioner on the basis of
the pay last drawn by him.
(Sanjay Dhar)
Judge
SRINAGAR
08.05.2026
“Bhat Altaf-Secy”

Whether the judgment is reportable: YES/NO

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