ABDUL QAYOOM SHEIKH vs UNION TERRITORY OF J AND K (HOUSING AND URBAN DEVELOPMENT) AND ORS

HIGH COURT OF JAMMU &KASHMIR AND LADAKH AT
SRINAGAR
Reserved on: 28.04.2026
Pronounced on:08.05.2026
Uploaded on: 08.05.2026
Whether the operative part or
full judgment is pronounced:
Full
WP(C) No.2142/2025
ABDUL QAYOOM SHEIKH ...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/
524 of 2024 dated 09.07.2024, issued by respondent No.2,
whereby his re-designation/upgradation as Building/
Sanitation Assistant in the pay scale of Rs.775/1025 (pre-
revised) made vide Order No.NAC/KH/95/201-02 dated
30.04.1995 in Notified Area Committee, Khrew, has been
rescinded ab initio and his placement in the pay scale of
Rs.5700-10100/ pending clearance by the DPC made vide
order No.DULB/Estt/695 of 2010 dated 14.10.2010, has
also been rescinded . The impugned order, while
ab initio
st nd
according post facto sanction to the 1 and 2 in-situ
WP(C) No.2142/2025 Page 1 of 7

promotion to the petitioner, seeks adjustment of excess pay
drawn by the petitioner with recovery of balance excess pay
from his DCRG emoluments.
2) It appears that the petitioner was initially appointed as
Dharat Mahaldar on daily wage basis in Notified Area
Committee, Khrew, vide order No.NAC/K/86 of 506-07 dated
02.10.1986 and subsequently his services were regularized
in the pay scale of Rs.345-460 in terms of order No.NAC/K-
87/4 of 1987 dated 30.03.1987. Thereafter, in terms of order
No.NAC/KH/95/201-02 dated 30.04.1995, the petitioner
was designated as Building/Sanitation Assistant in the pay
scale of Rs.775-1025(PR). Vide order No.312/DULB of 2003
dated 27.06.2003, issued by respondent No.2, the petitioner
was promoted as Sanitary Inspector in the pay scale of
Rs.4000-6000 (pre-revised) with effect from 01.07.1997. In
terms of order dated 07.05.2007, the petitioner was granted
st
1 step in-situ promotion from the pay scale of Rs.4000-
6000 to the pay scale of Rs.4500-7000(pre-revised) with
effect from 01.08.2006 under SRO 14 dated 15.01.1996.
3) It has been submitted that the petitioner was placed in
the pay scale of Rs.5700-10100 attached to the post of
Sanitary Inspector in terms of order No.DULB/Estt/695 of
2010 dated 14.10.2010, pending clearance by the
Departmental Promotion Committee.
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4) It has been submitted that, at the time of
superannuation of the petitioner from service on
30.04.2025, he was working on the post of Sanitary
Inspector It has been further submitted that the petitioner
was placed in the pay scale of Rs.5700-10100 attached to
the post of Sanitary Inspector pending clearance by the DPC
in terms of the order issued by respondent No.2 but his case
was never placed before the DPC. It has been contended that
respondent No.2 has not chosen to place the case of the
petitioner before the DPC despite the fact that the said
respondent is himself chairman of the DPC and instead of
doing so, respondent No.2 has issued the impugned order,
that too after the retirement of the petitioner.
5) The petitioner has challenged the impugned order on
the grounds that the same is ultra vires the powers of
respondent No.1, inasmuch as order regarding recovery of
the excess amount drawn by the petitioner after a lapse of
more than two months from the date of his retirement cannot
be issued. It has been contended that the recovery from the
emoluments, being a major penalty, cannot be
effected/imposed, that too without conducting a
departmental enquiry. It has been further contended that
the benefit of re-designation as Building/Sanitation
Assistant and his placement in the pay scale of Rs.5700-
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10100 has not been extended to the petitioner on account of
any fraud, misrepresentation or mischief attributable to him.
It has been contended that, after being redesignated as
Building/Sanitation Assistant, the petitioner discharged his
duties at the redesignated post for a period of eight years till
he was promoted to the post of Sanitary Inspector in the year
2003 and the petitioner having discharged his duties against
the redesignated post for a period exceeding five years, the
emoluments drawn for the services rendered at the
redesignated post cannot be recovered by the respondents in
terms of impugned order. It has been contended that the
impugned order is an outcome of illegal exercise of authority.
6) The respondents, in their reply to the writ petition, have
submitted that without seeking recommendations of the
DPC, the petitioner has been illegally promoted in the pay
scale of Rs.4000-6000 on pick and choose basis and on the
basis of illegal upgradation, the petitioner got first step in-
situ promotion in the pay scale of Rs.4000-6000. It has been
contended that on examination of pension case of the
petitioner, it was found that the re-designation order dated
30.04.1995 was issued by an incompetent authority and the
order regarding placement of the petitioner in the pay scale
attached to the post of Sanitary Inspector has been issued
without the recommendation of the DPC. According to the
WP(C) No.2142/2025 Page 4 of 7

respondents, illegal benefits given to the petitioner have been
reviewed, whereafter orders issued contrary to law and rules
have been rescinded in terms of the impugned order.
7) Heard and considered.
8) 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 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.
(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.
WP(C) No.2142/2025 Page 5 of 7

9) 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.
10) Admittedly, the petitioner has superannuated from
service on 30.04.2025 whereas the impugned order of
recovery has been issued on 09.07.2025. Therefore, so far as
the recovery of excess pay drawn by the petitioner on
account of his alleged illegal re-designation as
Building/Sanitation Assistant made vide order dated
30.04.1995 and his placement in the pay scale of Rs.5700-
10100 made in terms of order dated 14.10.2010 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 redesignated as
Building/Sanitation Assistant or when he was placed in the
pay scale attached to the post of Sanitary Inspector.
11) So far as fixation of pension of the petitioner is
concerned, the respondents seek to refix his pension on the
ground that his placement in the pay scale of Rs.5700-10100
attached to the post of Sanitary Inspector in terms of order
dated 14.10.2010 (supra) was pending clearance of the DPC.
Admittedly, the DPC was not held and, as such, the
placement of the petitioner in the higher grade was not
WP(C) No.2142/2025 Page 6 of 7

confirmed by the DPC. Hence, the petitioner is not entitled
to fixation of his pension in the grade of Sanitary Inspector
as he was never confirmed on that post. Thus, while the
respondents cannot recover the excess salary received by the
petitioner while working in the grade of Sanitary Inspector
but they are well within their rights to refix the pension of
the petitioner by ignoring his placement in the pay scale of
Rs.5700-10100 as the same was never cleared by the DPC.
12) For what has been discussed hereinbefore, the writ
petition is partly allowed and impugned order dated
09.07.2025, to the extent it seeks to recover the excess
emoluments drawn by the petitioner, is set aside, leaving it
open to the respondents to refix pension of the petitioner in
the light of the observations made hereinbefore.
(Sanjay Dhar)
Judge
SRINAGAR
08.05.2026
“Bhat Altaf-Secretary”

Whether the judgment is reportable: YES/NO



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