Jammu & Kashmir High Court
Mata Begum vs J&K Board School Education And Ors on 7 March, 2025
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
18
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
WP(C) No. 2334/2024
CM No. 5695/2024
Mata Begum .....Appellant(s)/Petitioner(s)
Through: Mr. M. Tariq Mughal, Advocate
vs
J&K Board School Education and ors. ..... Respondent(s)
Through: Mr. B. S. Bali, Advocate
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
ORDER
07.03.2025
Oral:
1. The husband of the petitioner, namely, Abdul Rehman S/o Ghulam Wani
had attained superannuation in the year of 31.01.2009 as Section Officer
from Jammu and Kashmir Board of School Education, respondents
herein and he came to demise on 20.01.2022.
2. After the demise of Abdul Rehman, the case of the petitioner for grant of
family pension, being wife of the deceased, was processed and during the
processing, it came to the fore that the deceased employee had drawn
excess pension with effect from 01.02.2009 till his death. The
respondents, as such, vide order No. 72-B dated 17.02.2023 revised the
monthly pension of deceased employee and accordingly directed for
release of family pension in favour of the petitioner, after deduction of
the excess pension drawn by the deceased employee, with effect from
01.02.2009 till his death.
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3. The order No. 72-B dated 17.02.2023 has been impugned by the
petitioner through the medium of present petition on the ground that the
excess pension paid to the deceased employee could not have been
recovered from the family pension of the petitioner in terms of the
various pronouncements of the Apex Court, particularly when the fault,
if any, was that of the respondents.
4. The respondents have filed the response stating therein that while
examining the record during processing of the family pension case of the
petitioner, it transpired that the deceased husband of the petitioner had
received excess pension with effect from 01.02.2009 till his death and
accordingly vide order dated 17.02.2023, the pension payable to the
deceased employee was revised and excess pension paid to the deceased
employee was ordered to be recovered from the family pension payable
to the petitioner vide order dated 17.02.2023.
5. Mr. M Tariq Mughal, learned counsel for the petitioner has argued that
the excess pension drawn by the deceased husband of the petitioner was
not on account of any fraudulent act or omission on the part of the
husband of the petitioner but it were the respondents who had themselves
wrongly fixed the pension, which was received by the husband of the
petitioner till his death.
6. Per contra, Mr. B. S. Bali, learned counsel for the respondents has
argued that the in terms of Article 291 of the Jammu and Kashmir Civil
Services Regulations, respondents are well within their power to revise
and re-fix the family pension payable to the petitioner. Further, there is
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no illegality in the action of the respondents in recovering the excess
pension drawn by the deceased husband of the petitioner, from the family
pension payable to the petitioner.
7. Heard learned counsel for the parties and perused the record.
8. This is the admitted case of the parties that the excess pension was
received by the deceased husband of the petitioner with effect from
01.02.2009 till his death. There is no allegation levelled by the
respondents that husband of the deceased had drawn the excess pension
either on account of any fraud or misrepresentation, but it is evident that
the pension was fixed by the respondents and fault, if any, in fixing the
wrong pension was solely of the respondents.
9. The husband of the petitioner as was not responsible for fixation of the
higher pension, as such, neither he nor the petitioner can be made liable
for the wrong committed by the respondents. The recovery of excess
amount of pension received by the deceased from the family pension of
the wife of deceased employee would be extremely harsh. It would be apt
to take note of the judgments of the Hon’ble Apex Court in State of
Punjab and others vs Rafiq Masih (White Washer), AIR 2015 SC
696 and Thomas Daniel vs. State of Kerala, 2002 Livelaw (SC) 438.
Article 291 of the J&K CSR is not applicable in the present facts of
circumstances of the case, as it is not the petitioner who has received the
excess pension.
10. In view of this, this Court is of the considered view that the respondents
could not have recovered the excess pension received by the husband of
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the petitioner from the family pension payable to the petitioner, that too
when she is having her independent right to get a family pension after the
demise of her husband, but at the same time the respondents can fix
family pension in favour of the petitioner on the basis of revised pension
of the deceased husband.
11. In view of the above, the present petition is disposed of by quashing the
order No. 72-B dated 17.02.2023 to the extent of recovery of arrears of
excess pension received by the husband of the petitioner from the family
pension of the petitioner. If the respondents have deducted any such
arrears from the family pension of the petitioner, the same shall be paid
to the petitioner forthwith.
12. Disposed of.
(RAJNESH OSWAL)
JUDGE
Jammu:
07.03.2025
Suraj
Whether the order is speaking: Yes
Whether the order is reportable: NoRakesh Kumar
2025.03.12 13:04
I attest to the accuracy and
integrity of this document
