1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.329/2002. : : Smt. Bachhu Devi Vs. Secretary, Irrigation Departmet & Ors. : : Date of Order 11.11.2008 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Ms.Naina Saraf for the petitioner. Mr.Hemant Gupta, Addl.Govt.Counsel for the State. Heard learned counsel for the parties. The petitioner, who is widow of late Shri Shivpal employee of the respondents, has approached this Court aggrieved by recovery of the amount of Rs.54,370/- and Rs.68,000/- from the payable amount of gratuity and family pension to her. Ms.Naina Saraf, learned counsel for the petitioner argued that late husband of petitioner was originally appointed as Beldar and subsequently he was appointed on the post of Gardner in the services of respondents in the year 1966 in the pay scale of Rs.75-170, his pay fixation was made on 1.9.1968 and 1.9.1976 on Rs.100-180 and 290-500 2 respectively. He was subsequently promoted as Gardner Supervisor and his name was mentioned in the seniority list of Gardner Supervisor dated 20.12.1985. The husband of the petitioner unfortunately died on 18.3.1994 while serving the respondents and the petitioner applied for her appointment on compassionate ground and grant of family pension. She was eventually granted such family pension and gratuity belatedly in the year 1999 by deducting the amount of Rs.54,370/- and Rs.68,000/- respectively. She submitted representation against such action of the respondents. When no action was taken, she filed this writ petition. It is prayed that the petitioner is an illiterate lady and officials of the respondents have taken signature of the petitioner on blank stamp paper assuring her that she would be given compassionate appointment. She know nothing about the implication of the same and made her thumb impressions. It is, therefore, prayed that the writ petition be allowed and the aforesaid amount be directed to be refunded with interest. Shri Hemant Gupta, learned Additional Government Counsel opposed the writ petition and submitted that late husband of the petitioner was never appointed on the post of Gardner. In fact as per their record, he was only appointed as Mali in the pay scale of Rs.75-170/-. It is also 3 submitted that his pay fixation was made on 1.9.1968 and treating him as a Mali. He was never promoted on the post of Gardner Supervisor. No such fact has been found in his service record. Assistant Engineer, Nirwana Irrigation, Sub- Division, Suratgarh vide his letter dated 1.4.1992 and thereafter on 29.4.1992 asked the petitioner's husband to submit the order regarding his promotion, but he could not show his order of promotion. Name of late husband of the petitioner was erroneously included in the seniority list of Gardner Supervisor dated 20.12.1985. In this list, it has wrongly been shown that he was appointed as Gardner Supervisor on 1.2.1966 and joined on 1.2.1966. The fact was that he was originally appointed as Mali on 1.2.1966 and his name appeared in the seniority list on the post of Mali dated 20.6.1989 at Serial No.5. Learned Additional Government Counsel also submitted that the revised pay scale was granted to him in the year 1976, 1983, 1987 and 1989 and accordingly, since the excess amount was found paid to late husband of the petitioner, the recovery of the same was made out of the amount of leave encasement and gratuity. Learned counsel submitted that the petitioner filed an affidavit on blank stamp paper of Rs.20 giving her consent for effecting recovery of Rs.54,370/-. Regarding other 4 amount of Rs.68,000/- it was denied that any such recovery was made. It is denied that signature of the petitioner was obtained on any blank paper or affidavit was prepared under any such pressure or assurance of compassionate appointment. Upon hearing the learned counsel for the parties and perusing the material on record, I find that the respondents themselves do not deny the fact of pay fixation of the petitioner's husband from time to time in the revised pay rules. They even admitted that the name of late husband of the petitioner was mentioned in the seniority list of the Gardner Supervisor issued by Chief Engineer vide order No.F78 (9-II)Kasa/7776-4840 dated 20.12.1985 but their assertion is tentative. It is contended that husband of the petitioner was Mali and wrongly shown as Gardner Supervisor. The two facts cannot be concealed while do not dispute the correctness of the assertion made by the petitioner regarding pay fixation of the husband of the petitioner from time to time but they denied that he was wrongly taken as Gardner Supervisor. It is surprisingly that pay fixation was done from time to time in the pay scale of 1976, 1983, 1987 and 1989 has gone unnoticed by their Accounts Section and this was when the late husband of the 5 petitioner was alive. When the husband of the petitioner was died, they discovered the so called mistake and sought to rectify it. They wanted to rectify it by obtaining the affidavit of the petitioner even if one were not to believe the version of the petitioner that her signatures were obtained on a blank stamp paper or affidavit was prepared of assurance was given to give compassionate appointment. The fact remains that the petitioner who has put her thumb impression on the present petition and also put her thumb impression on the blank stamp paper is illiterate lady. She cannot be expected to aware of any fact with regard to promotion or otherwise of her husband. The respondents do not themselves deny that all long the service career of her husband he was given benefit of the revised pay scale from time to time. The respondents in reply to the writ petition have admitted that they have made recovery of Rs.54,370/- but for the other amount of Rs.68,000/- their contention is that no such recovery was made. In any case, all these recoveries are not shown to have been made by any notice either to late husband of the petitioner or even to the petitioner. Such recoveries cannot be held to be justified. In the result, the writ petition is allowed. The recovery orders passed by the respondents are quashed and 6 set aside. The petitioner is held entitled to refund the amount recovered with interest @ 9% per annum and she is entitled for benefit as granted to her late husband and entitled to family pension and other terminal dues. Compliance of the judgment be made within three months from the date copy of the judgment is produced before the respondents. (MOHAMMAD RAFIQ)J. A.Arora/- Item No.21.