- (1.) The prayer made in this petition filed under Article 226 of the Constitution is for declaring recovery of Rs. 3,93,418/- (inclusive of interest amounting to Rs. 2,08,049/-) on the overdrawn pension of Rs. 1,85,369/- as illegal, null and void, and contrary to the principles of natural justice. A further prayer has been made for issuance of direction to the respondents to pay back the interest amount of Rs. 2,08,049/- as the same is without any lawful justification. A direction has also been sought against the respondents to grant interest @ 12 percent p.a. on the arrears of pension w.e.f. 1.1.1998 when it became due till its actual payment on 30.6.2002 as compensation for delay in payment and also to grant interest on the death cum retirement gratuity and other retiral benefits. It has still been prayed that a direction be issued to the respondents to fix the pension of the petitioner @ Rs. 5425/- p.m. as admissible to the rank of Honorary Capt. in pursuance to the recommendations made by the 5th Central Pay Commission instead of paying a sum of Rs. 4686/- which has been granted to the petitioner.
(2.) Brief facts of the case which are necessary for deciding the issue raised in the instant petition are that the petitioner joined the Indian Army on 5.12.1963. He was discharged on 27.9.1981 after rendering 17 years 297 days of service. At the time of his discharge he was holding the rank of Naib Subedar. He was granted service pension @ Rs. 219/- p.m. w.e.f. 1.10.1981. After more than 5 years he was re-employed in the territorial army on 8.5.1987. The petitioner submitted entire documentary proof to the authorities of the territorial army showing that he has served earlier in the Indian Army from 5.12.1963 to 27.9.1981. On 20.6.1987 he filled up option certificate and opted for clause (ii) of the certificate which postulates that from the date of exercise of option he was to refund the service pension already drawn during the period he had served in the territorial army alongwith gratuity amount including death cum retirement gratuity, if any, already drawn by him in the previous military service. A provision has also been made in clause (ii) that the personnel of the territorial army who had already retired were not to refund such like benefits and those were to be adjusted from the pension admissible under the order. The petitioner was granted the rank of Honorary Captain for having rendered exemplary service in the territorial army from 8.5.1987. He retired from the territorial army on 31.1.1997. The total service rendered by the petitioner in the territorial army comes to 10 years and 238 days as well as 53 days of embodied service. The respondents did not release the service pension to the petitioner, gratuity or commutation of pension on the ground that overdrawn pension of Rs. 1,85,369/- was not refunded as the petitioner continues to draw pension @ Rs. 219/- p.m. in lieu of the service rendered in the Indian Army. The afore-mentioned amount has grown to Rs. 3,93,418/- in 1999.
(3.) The petitioner submitted representation and on account of apathy of the respondents, he filed CWP No. 14361 of 1999 in this Court seeking the relief of adjustment/set off from the concerned department. This Court on 8.10.1999 recorded that liability to refund the amount of Rs. 3,93,418/- had remained undisputed as per the orders dated 12.7.1999 and 28.7.1999 passed by the respondents. However, the Division Bench noticed that the petitioner has sought the relief of adjustment/set off of the aforementioned amount and payment of pension on the basis of the balance amount due. Accordingly, the petitioner was permitted to withdraw the writ petition by giving liberty to the petitioner to seek appropriate relief of adjustment/set off from the respondents. The petitioner was also given liberty to file a fresh petition, if necessary. Thereafter, the petitioner served a legal notice on 9.2.2000 (Annexure P.7) claiming interest on the amount of pension withheld by the respondents which was payable w.e.f. 1.1.1998. When no decision was taken on the afore-mentioned legal notice, the petitioner again filed CWP No. 11079 of 2000 wherein directions were issued for deciding the legal notice within a period of four months by passing a speaking order. The order passed by the Division Bench on 24.8.2000 has been placed on record as Annexure P.8. Eventually the matter was decided by an order dated 27.6.2001 and the respondents still insisted for refund of Rs. 3,93,418/- by stating that the amount includes the total pension drawn by the petitioner from 8.5.1987 to 31.4.1998 plus 12 percent interest p.a. The amount was required to be deposited by means of bank draft in favour of D.P.D.O. Jagraon. On the deposit of the afore-mentioned amount the question of grant of pension to the petitioner was to be considered in consultation with the competent authority. This lead to the filing of COCP No. 430 of 2001 which was disposed of on 24.9.2002 as the learned counsel for the petitioner had accepted that some payments have been received and the amount paid to the petitioner was not according to his entitlement. He withdrew the contempt petition with liberty to challenge the order dated 27.7.2001. On 1.5.2002, the petitioner again issued a notice (Annexure P.12) claiming the afore-mentioned benefit. On 27.5.2002, the respondents released pension payment order No. S/910/2002 alongwith IAFA 369 (Descriptive Roll) in favour of the petitioner. Accordingly he started receiving pension w.e.f. 29.6.2002 and from an amount of Rs. 5,18,591/- which includes pension from 1.1.1998 to 30.6.2002 recovery of Rs. 4,76,638/- was made. Accordingly the balance amount of Rs. 41,953/- was paid. The dispute did not end there as the petitioner still raised the demand of erroneous fixation of his pension as he claimed that he was entitled to Rs. 5425/- p.m. as against the pension sanctioned at Rs. 4683/-. To that effect a representation was made on 20.12.2002.;