Page No.# 1/10 GAHC040012042024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH) Case No. : WP(C)/405/2024 Smti Tulsi Maya Bhujel Wife of Late Ram Bahadur Bhujel, presently residing at Ruksin Town, PO and PS Ruksin, East Siang District, Arunachal Pradesh. VERSUS The State of AP and 4 Ors represented by the Secretary, Department of Finance, Govt of Arunachal Pradesh, Itanagar. 2:The Secretary Age: 0 Occupation : Rural Works Department Govt of Arunachal Pradesh Itanagar. 3:The Director Age: 0 Occupation : Directorate of Audit and Pension Naharlagun Govt of Arunachal Pradesh. 4:The Chief Engineer Age: 0 Occupation : Rural Work Department Govt of Arunachal Pradesh Itanagar. 5:The Executive Engineer Age: 0 Page No.# 2/10 Occupation : Rural Work Division Pasighat East Siang District Arunachal Pradesh Advocate for the Petitioner : Nikita Danggen, K Gao,Nyarum Tapu Tacho,Honi Tana Tara,Penjom Siga,K Chotton,Oken Duggong Advocate for the Respondent : GA (AP), SC(RWD),Gimi Tarak BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER 26.03.2026 Heard Mr. O. Duggong, learned counsel for the petitioner; Mr. Y. Riram, learned Government Advocate for the State, being respondent Nos., 1 & 3; and Mr. G. Tarak, learned Standing Counsel for the Rural Work Department (RWD hereinafter), being respondent Nos. 2, 4 & 5. 2. In this petition, under Article 226 of the Constitution of India, the petitioner has challenged the letter No. Pen/AP/31472/19-20/302/907-09, dated 06.09.2019, issued by the Director of Audit and Pension. Further, the petitioner has prayed for issuing direction to the respondent authorities to grant her pensionary benefit of her deceased husband under the Old Pension Scheme (OPS hereinafter). 3. It is to be noted here that vide letter dated 06.09.2019, the Director of Audit and Pension, being respondent No. 3, had rejected the claim of the petitioner for granting pensionary benefit. 4. Mr. Duggong, learned counsel for the petitioner submits that the husband Page No.# 3/10 of the petitioner was initially appointed as ALC,in the office of the Additional Deputy Commissioner, Pasighat, vide order No. P-6000, dated 01.12.1976. Thereafter, he had been transferred to Nari, vide order No. P-6010/131, dated 17.01.1977 and thereafter, he was appointed as a Chowkidar of Ruksin Rest House, vide order No. RN/17/87-88, dated 19.09.1987 and he stayed at Ruksin for around two years as Chowkidar. Thereafter, again he had been transferred to Pasighat and subsequently, again he had been transferred back to Ruksin on the same year, i.e. 1989 and he had been placed under disposal of RWD Department, Ruksin, vide Memo No. RNP-1/89, dated 01.08.1989 and since then, he was working as a Chowkidar and also in addition to the same, he was working as Sweeper in the Rest House of Ruksin. 4.1. Mr. Duggon further submits that the Departmental Promotion Committee had recommend the name of the late husband of the petitioner for being appointed to the post of Sweeper in the year 2008 and accordingly, her late husband had been appointed to the post of Sweeper, vide order No. RWD/Estt- 239/05, dated 26.11.2008, after serving the department as regular temporary employee for 32 years. 4.2. Mr. Duggon also submits that many causal employees, who were junior to the late husband of the petitioner, were regularized before introduction of New Pension Scheme (NPS hereinafter). But, the service of her late husband was regularized, after introduction of NPS. Mr. Duggon further submits that, however, the respondent No. 5 had forwarded the service book along with the pension papers of late husband of the petitioner to the Director of Audit and Pension. 4.3. Mr. Duggon further submits that the service of the late husband of the petitioner was regularized from his initial joining as casual Sweeper, w.e.f. Page No.# 4/10 21.10.1983 to 25.11.2008, vide order No. RWC/Cord/Estt/WC(R)/410/2016/3190-93, dated 08.08.2018 (Annexure – 7, at page No. 37) and conveying the above mentioned ‘date of regularization’, the Executive Engineer, Pasighat, had written a letter to the Director of Audit and Pension, vide letter No. PRWD/PF-163/2008, dated 19.06.2019 (Annexure – 10, at page No. 43), stating that service of the petitioner's late husband had been regularized, vide Government Order No. RWD/Sectt/18/2002, dated 16.12.2003 and necessary entries has been made in his service book as per Government Appointment No. 20.12.2008, RWD/Estt-239, dated 26.11.2008. 4.4. Mr. Duggong also submits that in spite of the aforementioned letter of the Executive Engineer, the pensions papers of the petitioner’s husband have not been processed and consequently, she has been deprived of the benefit of the same and being aggrieved, the petitioner has approached this Court by filing the present petition. 5. The respondent authorities have filed their affidavits-in-opposition denying the statements and averments made by the petitioner in the petition. Their stand is that the service of the late husband of the petitioner was regularized only after coming into force of the NPS in the year 2008 and on such count, he is not entitled to the benefit. 6. Mr. Tarak, learned Standing Counsel for the respondents in RWD, referring to the Annexure – 7, at page No. 37 and Annexure – 10, page No. 43 of the petition fairly submits that in view of the regularization of the service of the late husband of the petitioner, w.e.f. 21.10.1983 to 25.11.2008 and also in view of the letter of the Executive Engineer, dated 19.06.2019, the petitioner is entitled to regular pension. Page No.# 5/10 6.1. Mr. Tarak further submits that he asked for the regularization information from the department, but the department could not furnish any plausible answer in respect of the page No. 37. 7. On the other hand, Mr. Riram, learned Government Advocate for the State respondents, has also subscribed the submission of Mr. Tarak, learned Standing Counsel for the RWD. 8. Having heard the submissions of learned counsel for both the parties, this Court has carefully gone through the petition as well as the documents placed on record and also perused the impugned letter dated 06.09.2019, which is annexed with the petition as Annexure – 11 and its typed copy is at page No. 47. 9. The impugned letter dated 06.09.2019, which is annexed with the petition as Annexure – 11, at page No. 47, is extracted herein below for ready reference:- GOVERNMENT OF ARUNACHAL PRADESH DIRECTORATE OF AUDIT AND PENSION NAHARLAGUN NO. Pen/AP/31472/19-20/302 Dated.....2019 TO The Executive Engineer, Rural Works Division, Pasighat, District :- East Siang, Arunachal Pradesh, Sub: - Return of pension papers & Service Book of Late Ram Bdr. Bhujel, Ex- Sweeper, Ref:- Your letter No. PRWD/PF-163/2008/502-03 dtd 19.06.2019. Sir, The pension papers & service Book of Late Ram Bdr. Bhujel, Ex-service, received with your letter cited above have been checked and the same are Page No.# 6/10 returned in original with the following observations for your necessary action. 1. It is clearly mentioned in the appointment order that Lt. Ram Bdr. Bhujel was engaged as casual sweeper w.e.f. 21-10-1983 to 25-11- 2008 vide order No.RWC/Coord/Estt/W/C (R)410/2016/319-93 Dated Itanagar the 8th Aug 2018. But the provision of giving benefits of pension/family pension and crediting of 50% casual service to the length of qualifying service has stopped with the introduction of NPS w.e.f 01-01-2008 in Arunachal Pradesh vide order No. DA/NPS/12/2017-18 Dated 14" June 2018 (A copy enclosed). So, the instant case is neither eligible for family pension nor provision for crediting 50% of casual service into the total length of qualifying service is available. 2. So, his total regular service comes to 8 years 9 months and 11 days only and the excess drawal of death gratuity to the tune of Rs, 1,74,050/- only (Rupees one lakh seventy four thousand and fifty) due to wrong calculation may please be recovered and deposited into treasury under proper head of account. After attending the above observation, the service Book and the required pension papers may be resubmitted to this office for further necessary action. Enclo:- As started Yours Sincerely, Director of Audit and Pension, Government of Arunachal Pradesh, Naharlagun 10. Perusal of the Clause Nos. 1 & 2 of the impugned letter dated 06.09.2019, reveals that NPS came into effect w.e.f. 01.01.2008, in Arunachal Pradesh and the petitioner was engaged as casual sweeper vide order dated 25.11.2008 and as such, he is neither eligible for family pension nor provision for crediting 50% of casual service into the total length of qualifying service is available and that total regular service comes to 8 years 9 months and 11 days only and the excess drawal of death gratuity to the tune of Rs, 1,74,050/- due to wrong calculation may be recovered and deposited into treasury under proper head of account. Page No.# 7/10 10.1. It appears that while the aforementioned letter was issued on 06.09.2019, the authority has failed to take into account of the order dated 26.06.2018 (Annexure – 7), whereby the service of the late husband of the petitioner was regularized from the initial date of his joining as Casual Sweeper, w.e.f. 21.10.1983 to 25.11.2008 and also the letter of the Executive Engineer, dated 19.06.2019 (Annexure – 9), wherein it has been clearly mentioned that as per regularization order dated 16.12.2003, the late husband of the petitioner is entitled to get benefit for pension under OPS. 11. Further, it appears from the impugned letter dated 06.09.2019, the Director of Audit and Pension has directed to recover a sum of Rs. 1,74,050/- as excess drawal due to wrong calculation. But, in terms of law laid down by Hon’ble Supreme Court, in the case of State of Punjab vs. Rafiq Masih (White Washer), reported in (2015) 4 SCC 334, recovery of excess drawal is illegal and impressible in respect of Group – ‘D’ employee and also in respect of the employee who had already retired from service. Relevant paragraph is reproduced herein below for ready reference:- “18. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). (ii) Recovery from the retired employees, or the Page No.# 8/10 employees who are due to retire within one year, of the order of recovery. (iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.” 11.1. Recovery is also not permissible in view of the decision of Hon’ble Supreme Court in the case of Thomas Deniel vs. State of Kerala and Others, reported in 2022 SCC Online SC 536, when the employee is no way responsible in fixation of the pay scale and when there is no fraud or misrepresentation on the part of the employee. Relevant paragraph is reproduced herein below for ready reference:- “9. This Court in a catena of decisions has consistently held that if the excess amount was not paid on account of any misrepresentation or fraud of the employee or which is subsequently found to be erroneous, such excess payment of emoluments or allowances are not recoverable. This relief against the recovery is granted not because of any right of the employees but in equity, exercising judicial discretion to provide relief to the employees from the hardship that will be Page No.# 9/10 caused if the recovery is ordered. This Court has further held that if in a given case, it is proved that an employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, the courts may on the facts and circumstances of any particular case order for recovery of amount paid in excess.” 12. Under the aforementioned facts and circumstances and as agreed upon by learned counsel for both the parties, the impugned letter of the Director of Audit and Pension, dated 06.09.2019, stands set aside and quashed. Now, the matter is remanded to the Director of Audit and Pension to process the pension papers of the late husband of the petitioner in the light of the order dated 26.06.2018 and also in the light of the letter of the Executive Engineer dated 19.06.2019 and to settle the pension papers and service book of the petitioner. Further, it is provided that recovery is not permissible in view of the fact that the husband of the petitioner was a Class – IV (Group – ‘D’) employee, also retired from service and also suffered demise. His case falls under situation Nos. (i) & (ii) of paragraph No. 18 of the decision in the case of Rafiq Masih (supra) and also falls under paragraph No. 9 of the decision in the case of Thomas Daniel (supra). 13. The aforementioned exercise has to be carried out within a period of 3 (three) months from the date of receipt of the certified copy of this order. 14. The petitioner shall obtain a certified copy of this order and place the same before the respondent authorities, more particularly respondent No. 3, within a period of one week from today. Page No.# 10/10 15. In terms of above, this writ petition stands disposed of, the parties have to bear their own costs. JUDGE Comparing Assistant