Gauhati High Court
Union Of India (Uoi) And Ors. vs Man Bahadur Chhetri And Ors. on 14 August, 2007
Equivalent citations: 2008(1)GLT1
Author: T. Vaiphei
Bench: T. Vaiphei, A.P. Subba
JUDGMENT T. Vaiphei, J.
1. This bunch of writ appeals is directed against the judgment and five separate judgments and orders dated 22.2.2006 passed by the learned Single Judge in WP(C) Nos. 89(SH) of 2000, 8(SH) of 2001, 100(SH) of 2001, 163(SH) of 2001 and 212(SH) of 2002 cancelling the orders of the respondents compulsorily retiring the writ petitioners from service. The appeals, involving identical questions of law, were heard together and are being disposed of by this common judgment.
2. In all these appeals, the validity of the notices issued by the Director General of Assam Rifles, in exercise of the powers conferred by Rule 56 of Fundamental Rules/Rule 48(1)(b) of the Central Civil Services (Pension) Rules, 1972, compulsorily retiring each of the respondents, who were Subedar Major, from service. For the sake of convenience, we shall first set out the facts in WA No. 8 of 2006, decide this case and apply the result thereto in the remaining cases. The facts of this case, bereft of unnecessary details, but are relevant for the appeal, may be set out as under:
The writ petitioner (hereinafter referred to as "the respondent") was enrolled in the Assam Rifles on 19.01.1960 and was formally appointed as Rifleman on 20.12.1960 and was subsequently promoted to Subedar, upon which he was posted to the Raj Bhavari as Honorary ADC to the Governor of Meghalaya with effect from 7.5.1987. He was further promoted to Subedar Major on 1.10.1992. His date of birth is 19.1.1942. When he was serving as Subedar Major, the Assam Rifles issued the impugned notice dated 10.11.1995 retiring him from service with effect from 30.9.1996 on completion of 36 years and 8 months of service and after completing a tenure of 4 years as Subedar Major. It is not in dispute that his service record had been placed before the Review Committee on his completion of 30 years of service and on the basis of the recommendation o£ the Committee, the Director General of Assam Rifles had approved his retention in service beyond 30 years. However, before he reached the normal age of superannuation he was served with a notice informing him that he shall retire from service on the afternoon of 30.09.1996 on completion of four years tenure as Subedar Major. The said notice which is impugned herein reads as follows:
Directorate General of Assam Rifles : Shillong 1.31019/SM/95/Addl. District Magistrate-III/82 Dated, Shillong, the 10th Nov 1995 Whereas the Director General of Assam Rifles is of the opinion that it is inpublic interest to do so.
Now, therefore, in exercise of the powers conferred by Rule 56 of FR Rule 48(1)(b) of CCS (Pension) Rules, 1972, the Director General of Assam Rifles hereby gives notice to JC-2400013 Sub/Maj Bir Bahadur Kanwar Chhetri that he having completed 36 years 8 months service on 30.9.96 and on completion of 4 years tenure as Sub Major shall retire from service on the afternoon of 30.9.96.
(K. Soman Pillai) Lt. Col.
Offg DD (Records) For DG Assam Rifles.
3. It may be noted that on the recommendation of the Fifth Pay Commission, which was accepted and acted upon by the Central Government, the Directorate of Assam Rifles vide the communication dated 28.7.99 issued the order enhancing the age of retirement of Assam Rifles JCO to 60 years including Subedar Major against the existing retirement age of 57 years with 4/6 years of tenure as Sub Major. The aforesaid communication also clarified that all instaictions issued heretofore on the subject were to be treated as cancelled. However, the appellant authorities by the communication dated 24.3.2000 clarified that the Subedars promoted to Sub Major prior to 31.5.1998 would retire on completion of a tenure of 6 years as Sub Major or on attaining the age of 60 years, whichever was earlier, but Subedar promoted to Subedar major on 1.6:98 and thereafter would retire on completion of 4 years of tenure as Subedar Major or on attaining the age of 60 years, whichever was earlier". As noted earlier, the impugned notice was issued in purported exercise of the powers conferred under Rule 56 of FR/Rule 48(1)(b) of Central Civil Services (Pension) Rules 1972 on the ground that the respondent would be completing 36 years and 8 months of service on 30.9.96 and would have also completed a tenure of 4 years as Subedar Major.
4. According to the learned Single Judge, the power of compulsory retirement under Rule 56 of the Fundamental Rules must be exercised not arbitrarily but only upon forming an opinion, based on material, by the competent authority that in public interest, it is necessary to compulsorily retire a Government servant. The learned Single Judge recorded the findings that there was nothing in the service record of the respondent to show that any adverse entry was ever recorded therein and that except for lack of promotional avenues in the force, no argument was advanced by the appellants to sustain the claim of public interest. She, therefore, held that there was no public interest in curtailing the age of superannuation of the respondent. The learned Single Judge on examining Rule 48(1)(b) of the CCS (Pension) Rules, 1972 vis-a-vis the Office Memorandum dated 14.5.1998, took the view that if a Government Servant is, on review of his service career, found fit for retention in service beyond the qualifying period of service of 30 years; such Government servant shall normally retire from service on superannuation at the age of 60 years and that once the Review Committee had found the respondent to be fit for retention in service beyond thirty years of qualifying service in terms of Rule 48(1)(b), his service could not be terminated once again by invoking the same rule. As for the applicability of 4/6 years of tenure, the learned Single Judge held that the stipulation of 6 years tenure for Sub Major who was so promoted to this rank prior to 31.5.98 or on 4 years of tenure for Sub Major who was so promoted on or after 1.6.1998, is violative of Article 14 of the Constitution since this policy decision cannot override the age of superannuation prescribed by the amended Fundamental Rules following the acceptance of the Fifth Pay Commission and, more so, when the Directorate, Assam Rifles has not been empowered to take a policy decision with respect to the age of superannuation of the Assam Rifles personal, which is a substantive right. On the contention of the appellant authorities that the respondent himself had given an undertaking on 21.10.1992 when he was promoted to the rank of Sub Major that he would retire on completion of four years tenure or on attaining 55 years of age, whichever was earlier, and that he could not now turn around and claim that he was to retire at the age of 60 years, the learned Single Judge held that such an undertaking was contrary to all cannons of the law governing the service conditions of a Governmental servant. The learned Single Judge accordingly held that the right of the respondent to continue in service till he attained the age of 60 years could not be set at naught by such an undertaking or under the guise of exercising the powers under Rule 56 of the Fundamental Rules and/or Rule 48(1)(b) of the CCS (Pension) Rules, 1972 by the appellant authorities. The soundness of the views taken by the learned Single Judge is called into question by the appellant authorities in this appeal.
5. Both Mr. S.C. Shyam, the learned Central Government Counsel appearing for the appellants and Mr. B.R. Dutta, the learned senior Counsel for the respondent/writ petitioner, have been extensively heard by us. The jurisdiction of this Court to judge the soundness of the findings of a Single Judge in a writ petition is extremely limited. If the view taken by the learned Single Judge is a possible view, this Court in a writ appeal cannot interfere therewith on the ground that the other view would have been a better view. There is no dispute that the respondent, whose date of birth being 19.1.1942, would be retiring in 2000 when he attained the age of 58 years under the unamended Fundamental Rules. However, in terms of the amended Fundamental Rules giving effect to the Office Memorandum dated 13.5.1998 issued by the Ministry of Personnel, Public Grievances & Pensions, Govt, of India, the age of Superannuation of Central Government employees was increased to 60 years of age. Clause 3 of the said Office Memorandum provides that the amended rules would be applicable to all Central Government employees except those who have already retired in accordance with earlier rules, among others. In other words, only those Central Government employees who had already retired in accordance with the rules before the coming into force of the Amended Rules would be denied of the benefit of enhanced superannuation age. The expression "in accordance with the earlier rules" is significant in that if the Government employee was not retired in accordance with the earlier rules, his right to remain in service upto the age of 60 years under the amended rule, or, for that matter, upto the age of 58 years under the unamended rule cannot be curtailed. By the Office Memorandum dated 14.5.1998, the benefit of enhanced retirement age was also extended to Central Para Military Forces. Admittedly, the Assam Rifles is one of the Central Para Military Forces.
6. The first point for determination is whether the respondent could be said to be a member of the Assam Rifles who had "already retired" in accordance with the earlier rules the learned Counsel for the appellants contends that the respondent was given compulsory retirement in terms of Rule 56 of the Fundamental Rules and, as such, there was no infirmity in the impugned notice. The learned Single Judge has already held that there was never adverse entry in the service career of the respondent, a fact which led the Review Committee to recommend the retention of his service beyond thirty years of qualifying service; there was no material upon which the appellant authorities could form an opinion that the services of the respondent was liable to be dispensed with in public interest. We are in respectful agreement with the view taken by the learned Single Judge. In this view of the matter, it cannot be held that the respondent was compulsorily retired in accordance with the earlier rules. That being the position, even without the amended rules, the respondent would have retired only in 2000, even if the age of superannuation was 58 years under the earlier rules. But with the coming into force of the amended rules, the respondent had the right to continue in service till 31.1.2002, when he would have attained the age of 60 years. The purpose of compulsory retirement is to weed out dead wood, inefficient, corrupt and people of doubtful integrity by compulsorily retiring them from service. But before compulsorily retiring a Government employee from service under Rule 56(j) of the Fundamental Rules, the appropriate authority must form bonafide opinion that compulsory retirement of the Government employee is in public interest as otherwise it would amount to arbitrary or colourable exercise of power. In Baldev Raj Chadha v. Union of India , the Apex Court held that although the purpose of FR 56 was to weed out worthless employees without punitive extremes, if under the guise of "public interest", an order of premature retirement is made for any other purpose, it would be the surest menace to public interest and the order must fail for unreasonableness, arbitrariness and "disguised dismissal". Again, in M.S. Bindra v. Union of India , the Apex Court observed:
Judicial scrutiny of any order imposing premature compulsory retirement is permissible if the order is either arbitrary or malafide or if it is based on no evidence. The observation that principles of natural justice have no place in the context of compulsory retirement does not mean that if the version of the delinquent officer is necessary to reach the correct conclusion, the same can be obviated on the assumption that other materials alone need be looked.
It was also observed:
13. While viewing this case from the next angle for judicial scrutiny, i.e., want of evidence or material to reach suclra conclusion, we may add that want of any material is almost equivalent to the next situation that from the available materials, no reasonable man would reach such a conclusion." After discussing the aforesaid observations and other decisions, the Apex Court in State of Gujarat v. Suryakant Chunilal Shah 1999) 1 SCC 539 reiterated the legal position at para 23 and 24 as follows:
23. In order, therefore, to find out whether any government servant has outlived his utility and is to be compulsorily Tetired in public interest for maintaining an efficient administration, an objective view of overall performance of that government servant has to be taken before deciding, after he has attained the age of 50 years, either to retain him further in service or to dispense with his services in public interest, by giving him three months' notice or pay in lieu thereof.
24. The performance of a government servant is reflected in the annual character roll entries and, therefore, one of the methods of discerning the efficiency, honesty or integrity of a government servant is to look at his character roll entries for the whole tenure from the inception to the date on which decision for his compulsory retirement is taken. It is obvious that if the character roll is studded with adverse entries or the overall categorization of the employee is poor and there is material also to cast doubts upon hi£ integrity, such a government servant cannot be said to be efficient. Efficiency is a bundle of sticks of personal assets, thickest of which is the stick of "integrity". If this is missing, the whole bundle would disperse. A government servant has, therefore, to keep his belt tight.
7. Confronted with this situation, Mr. S.C. Shyam, the learned CGC alternatively argues that it is within the power of the Director General, Assam Rifles, to issue instructions to regulate the working of the Force including the authority to lay down the restriction that a person who has been promoted to the rank of Subedar Major shall serve for a term of 6 years or 55 years, whichever is earlier, as was done in the instant case. He draws our attention to Rule 4(1) of the Assam Rifles Rules, 1985, which provides that the Director General, Assam Rifles may, in all cases where no specific provision is provided for, issue such orders and instructions as may be necessary to regulate the working of the Force, which, according to him, is the source of power. The learned CGC points out that the decision to curtail the age of retirement was taken by the Director General to create promotional avenues for the members of the Force and that, in the absence of such restriction, there would be stagnation and no promotional avenues would be available to a large number of the Force. Finally, it is contended by the learned CGC that the respondent himself made an undertaking before his promotion that he would retire from service after completing a tenure of 4 years as Subedar Major or 55 years of age, whichever was earlier. This undertaking is found at Annexure-1 to the counter and he cannot now claim that he should retire at the age of 60 years, contends the learned CGC.
8. As noticed earlier, the Office Memorandum dated 13.5.1998 read with the Office Memorandum dated 14.5.1998 did enhance the retirement age of Government employee including the Assam Rifles personal from 58 years to 60 years by making consequential amendment in the Fundamental Rules. This Rule is made by the President of India in exercise of his legislative power under Article 309 of the Constitution. On the other hand, the policy decision taken by the Director General of Assam Rifles to require the respondent and other similarly situated persons to retire on completing a tenure of 4 years as Subedar Major or on attaining 55 years of age has no legislative sanction, but is, at the most, in the nature of administrative instruction or directions. Administrative instructions are subsidiary to the statute or rules, and cannot be permitted to interfere with, or prevail over, statutory provisions. Provisions of law cannot be circumvented or overridden by administrative instructions/directions. In other words, administrative instructions cannot amend, supplant or supersede the rules. A rule can be amended only by a rule and not by administrative instructions. Such instructions inconsistent with a rule cannot stand. It is true that where the rules are silent, administrative instructions can certainly be issued to carry out the functions under the Act, but this principle is always subject to the condition that such instructions should not conflict with or defeat any provision in the rules or parent Act. This is a settled law without reference to cases. Applying this settled law, we are of the view that the substantive right of the respondent to continue in service till he attains the age of 60 years conferred by the amended Fundamental Rules cannot be curtailed or defeated by the policy decision taken by the Director General, Assam Rifles. The policy decision taken by the Director General, Assam Rifles is contrary to, or is inconsistent with the amended Fundamental Rules enhancing the retirement age of Assam Rifles Personnel.
9. Similarly, by the undertaking dated 31.1.1995 (Annexure-I) signed by the respondent to the effect that on his promotion to the rank of Subedar Major, he had agreed to retire from service on completion of 4 years as Subedar Major, or on his attaining the age of 55 years of age, whichever was earlier, cannot come in the way of making his rightful claim or of enforcing his legal right to continue in service upto the age of 60 years of age for the simple reason that there can be no estoppel against statute. The statutory right conferred upon the respondent to retire from service at the age of 60 years in terms of the amended FR cannot be bartered away by him by signing an undertaking of the nature purportedly enforced by the appellant authorities. In K. Ramadas Shenoy v. Chief Officers, Town Municipal Council , the Apex Court held that an excess of statutory power cannot be validated by acquiescence in or by the operation of an estoppel. An agreement or undertaking contrary to law cannot, therefore, be enforceable. In the view that we have taken, we hold that the said undertaking is non-est and cannot be acted upon by the appellant authorities for the compulsory retirement of the respondent. Therefore, the contentions of Mr. S.C. Shyam, the learned CGC on both counts fail. Therefore, the impugned notice is illegal and ultra vires and is accordingly quashed. We may also point out that the inevitable consequence of our finding that the said undertaking is illegal is that the promotion of the respondent to the rank of Subedar Major in terms thereof is equally illegal. In the result, we hold that the respondent was deemed to have been in service in the post of Subedar and was entitled to continue in that post upto 19.1.2002 when he attained the age of 60 years. This is in terms of the submission of the learned CGC, which has sufficient force.
10. For the reasons recorded in the foregoing, this appeal now stands disposed of with the following directions:
(a) The impugned notice dated 10.11.1995 is hereby set aside.
(b) The appellant authorities shall pay the salaries and allowance admissible to the post of Subedar under the rules to the respondent with effect from 1.10.1996 till 19.1.2002 when he would have attained the age of 60 years, within a period of three months from the date of receipt of this judgment.
(c) The additional benefits, if any paid to the respondent in the post of Subedar Major together with the pensionary benefits already drawn by him between 1.10.1996 to 19.1.2002 shall be recovered and deducted from the salaries and allowances payable to him in terms of this judgment.
(d)The parties shall bear their respective WA No. 5(SH) of 2006
11. In this case, the respondent was enrolled as recruit boy on 7.4.1962, and was formally appointed as Rifleman on 1.5.1965, and was further promoted to the rank of Subedar Major on 1.11.1994 at the age of 46 years with 29 years of service. By the impugned notice dated 27.3.2000, he was retired from service after completing the age of 52 years and 3 months with a tenure of 6 years as Subedar Major with effect from 21.10.2000. It is the common ground of the parties that the date of birth of the respondent is 1.7.1948. Thus, on the basis of the enhanced retirement age of 60 years, he is to retire from service only on 1.7.2008 and not on 31.10.2000. As in WA No. 8 of 2006, the impugned notice was issued by the Director General of Assam Rifles in purported exercise of the powers conferred upon him by FR 56/Rule 48(1)(b) of the CCS (Pension) Rules, 1972 and also on the basis of similar undertaking signed by the respondent that he would retire prematurely if he was promoted to the rank of Subedar Major. For the reasons already stated by us in WANo. 8 of 2006, we hold that the impugned notice is bad in law and is liable to be set aside. The impugned notice is accordingly set aside. We also hold that the respondent is entitled to remain in service in the post of Subedar till 1.7.2008.
12. It is, however, submitted by Mr. S.C. Shyam, the learned CGC, that the bearing in mind the fact that the respondent has been out of service for so many years, and particularly when the type of activities carried on by him in the interregnum to earn his livelihood is not known, it will not be safe for the Force to re-induct him to service at this stage; he may even pose security threat to the Force. Mr. B.R. Dutta, the learned senior Counsel for the respondent concedes that it may not be appropriate at this stage to reinstate the respondent to the post of Subedar, but he at the same time urges this Court to direct the appellant authorities to pay his full wages from the date of his premature retirement to the date when he would reach the enhanced retirement age i.e. till 1.7.2008 minus the pension already drawn by him heretofore. We may note that once we hold that the undertaking dated 4.7.1998 signed by the respondent is illegal, the promotion to the post of Subedar Major cannot be sustained in law either. On considering the issues from all angles, we find force in the contentions of the learned Counsel for the rival parties. In the interest of security, it will neither be desirable nor advisable to direct the reinstatement of the respondent to service at this belated stage. Moreover, the respondent, who is admittedly the beneficiary of the illegal undertaking made by him to gain undue promotion, cannot now legally claim to continue in the post of Subedar Major once it is held that the undertaking (Willingness Certificate) in question is held illegal. Apart from the security point of view, to reinstate the respondent to service in the post of Subedar at this stage will be embarrassing and even humiliating for him since his juniors must have been promoted to the rank of Subedar Major by now. In the fitness of things, without reinstating him to service, the ends of justice would be met by issuing the directions as suggested at the bar.
13. In the result, we direct the appellant authorities to pay the salaries and allowances admissible under the rules to the respondent with effect from 1.11.2000 to 1.7.2008 when he would attain the age of 60 years. The back wages due from 1.11.2000 shall be paid to him within three months from the date of receipt of this judgment. As for future salaries and allowances, they shall be paid as and when they fall due on every month till 1.7.2008. The additional financial benefits paid to him as Subedar Major, if any, and the pensionary benefits already drawn by him heretofore shall be recovered from him by making necessary deductions from the salaries and allowances payable to him by virtue of this judgment. The writ appeal stands disposed of in the manner indicated above. There shall be no order as to costs.
WA No. 6 (SH) of 2006.
14. In this case also, the respondent was enrolled as Rifleman Operator in the Signal Category on 29.6.1965, and was promoted to Naik Subedar on 11.2.1983 and was further promoted to Subedar in 1990. He was again promoted to Subedar Major in 1994. By the notice dated 17.10.1997, he was retired from service with effect from 30.9.1998 after completing a tenure of 4 years of service as Subedar Major. It may be noted that he had earlier applied for and was subsequently allowed to proceed on voluntary retirement on 31.8.1998 by the order dated 19.2.1998, by cancelling the order dated 17.10.1997. In view of the amended rule enhancing the retirement age to 60 years, he was allowed to continue for two more years and was finally forced to retire on 30.9;2000 at the age of 51 years and 9 months and on completion of 6 years tenure as Subedar Major by the impugned order dated 27.3.2000. As per his recorded date of birth, he would be retiring only in 2008, and not on 30.9.2000. As in the foregoing cases, the impugned notice was issued by the Director General of Assam Rifles, purportedly in exercise of the powers conferred upon him by FR 56/Rule 48(1)(b) of the CCS (Pension) Rules, 1972 and also on the basis of the undertaking (Willingness Certificate) signed by the respondent, which is in pari materia with the undertakings signed by the other respondents in the foregoing cases, that he would retire prematurely if he was to be promoted to Subedar Major. For the reasons already recorded by us in WA No. 8(SH) 2006, we hold that the impugned notice cannot be sustained in law, and is liable to be quashed. The impugned notice is accordingly quashed. We declare that the respondent is entitled to remain in service in the post of Subedar till 2008, when he attains the age of sixty years.
15. Resultantly, we direct the appellant authorities to pay the salaries and allowances admissible to the post of Subedar under the rules to the respondent with effect from 1.10.2000 till 2008 when he attains the age of 60 years. The back wages due from 1.10.2000 shall be paid to him within three months from the date of receipt of this judgment. As for the future salaries and allowances, fhey shall be paid as and when they fall due. Needless to say, the additional financial benefits, if any, and the pensionary benefits already drawn by the respondent shall be recovered and deducted from the salaries and allowances payable to him by virtue of this judgment. The writ appeal-stands disposed of in the manner indicated herein above. No cost.
WA No. 7 (SH) of 2006
16. The facts of this case are substantially similar to the other cases. In this case, the respondent was initially enrolled as Recruit (General Duty) on 3.10.1963, and was formally appointed as Rifleman on the same day. He was ultimately promoted to the rank of Subedar Major on 6.3.1995 at the age of 49 years and 5 months. On completion of a tenure of 6 years as Subedar Major and on reaching the age of 55 years and 4 months, he was given forced retirement by the impugned notice dated 5.5.2000 with effect from 31.1.2001. His recorded date of birth is 3.10.1945 and was to retireon 2.10.2005 on the basis of the enhanced retirement age of 60 years. Like in the foregoing cases, he was given premature retirement by the Director General of Assam Rifles, in purported" exercise of FR 56/Rule 48(l)(b) of the CCS (Pension) Rules, 1972 and also on-the basis of similar undertaking (Willingness Certificate) made by him. For the reasons already recorded by us, which are equally applicable to the facts of this case, we hold that the impugned notice is bad in law, and are liable to be quashed. The impugned notice is accordingly quashed. We declare that the respondent was entitled to remain in service as Subedar till 2.10.2002 when he would have attained the age of 60 years.
17. Consequently, the appellant authorities are directed to pay the salaries and allowances of the respondent with effect from 1.2.2001 to 2.10.2005 when he would have attained the enhenced age of superannuation, within three months from the date of receipt of this judgment. The appellant authorities shall recover and deduct the additional financial benefits, if any, already paid to the respondent in the post of Subedar Major and all the pensionary benefits already drawn by him from the salaries and allowances now payable to him in terms of this judgment. The writ appeal is disposed of on the terms indicated above. No order as to costs.
WA No. 9 (SHI of 2006)
18. In this writ appeal, the facts of the case are that the respondent was enrolled as Recruit/General Duty on 7.5.1965, and was formally appointed as Rifleman on the same day. He was eventually promoted to the rank of Subedar Major on 1.4.94 at the age of 48 years with 29 years of service. By the impugned notice dated 18.8.97, he was prematurely retired from service with effect from 31.3.98 on his completion of 32. years and ten months of service with a service tenure of 4 years as Subedar Major. His recorded date of birth is 7.5.1946, and would ordinarily have retired from service only on 31.5.2006 on the basis of the enhanced retirement age of 60 years.
19. In other words, by the impugned notice, he had been retired from service 8 years earlier than his due date of retirement. The impugned notice was issued by the Director General of Assam Rifles, in purported exercise of the powers conferred by FR 56/Rule 48(1)9(b) of the. CCS (Pension) Rules, 1972 and also in terms of the undertaking (Willingness Certificate) signed by the respondent, which is similar to the undertaking signed by the other respondents in the foregoing cases. For the reasons already recorded by as in the foregoing cases, which are squarely applicable to the facts of this case, the impugned notice dated 18.8.1997 must also meet same fate, and is accordingly set aside. Se accordingly hold and declare that the respondent was deemed to have continued in service from 1.4.1998 to 31.5.2006 when he would have attained the age of 60 years.
20. In the result, we direct the appellant authorities to pay the salaries and allowances of the respondent as admissible under the rules to the post of Subedar with effect form 1.4.1998 to 31.5.2006 within a period of three months from the date of receipt of this judgment. The additional financial benefits, if any, paid to the respondent while holding the post of Subedar Major and the pensionary benefits already drawn by him heretofore shall be recovered and deducted from the salaries and allowances payable to him in terms of this judgment. The writ appeal is accordingly disposed of in terms indicated above. On the facts and circumstances of this case, the parties are directed to bear their own costs.