Mata Begum vs J&K Board School Education And Ors on 7 March, 2025

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: No

Rakesh Kumar
2025.03.12 13:04
I attest to the accuracy and
integrity of this document