Page No.# 1/9 GAHC010198752017 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/2158/2024 DR. DEVIMALLIKA RAJKHOWA DAUGHTER OF LATE DEBA DHAR RAJKHOWA RESIDENT OF CHERING CHAPORI BOLURAM DOWERH PATH P.O.- DIBRUGARH DISTRICT- DIBRUGARH PIN- 786001 ASSAM. VERSUS THE STATE OF ASSAM AND 6 ORS REPRESENTED BY THE SECRETARY TO THE DEPARTMENT OF HIGHER EDUCATION GOVERNMENT OF ASSAM DISPUR GUWAHATI DISTRICT- KAMRUP(M) PIN- 781006 ASSAM. 2:THE COMMISSIONER AND SECRETARY FINANCE DEPARTMENT GOVERNMENT OF ASSAM DISPUR GUWAHATI DISTRICT- KAMRUP(M) PIN- 781006 ASSAM. 3:THE DIRECTOR OF HIGHER EDUCATION ASSAM KAHILIPARA GUWAHATI Page No.# 2/9 DISTRICT- KAMRUP(M) PIN- 781019 ASSAM. 4:THE PRINCIPAL D.H.S.K. COMMERCE COLLEGE K.C. GOGOI PATH DIBRUGARH PIN- 786001 ASSAM. 5:THE ACCOUNTANT GENERAL ( A AND E) ASSAM MAIDAMGAON BELTOLA GUWAHATI DISTRICT- KAMRUP(M) PIN- 781029 ASSAM. 6:THE TREASURY OFFICER DIBRUGARH RAILWAY COLONY CHOWKIDINGEE DIBRUGARH PIN- 786003 ASSAM. 7:OHIDUZ ZAMAN SON OF MD. SHAMSUR RAHMAN RESIDENT OF L.N.B. ROAD HAIBARGAON P.O.- HAIBARGAON DISTRICT- NAGAON PIN- 782002 ASSAM. ------------ Advocate for : MR. K P PATHAK Advocate for : SC HIGHER EDU appearing for THE STATE OF ASSAM AND 6 ORS Page No.# 3/9 BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER 22.04.2025 Heard Mr. K.P. Pathak, learned counsel for the petitioner; Mr. D. Upamanyu, learned standing counsel of Higher Education Department for the respondent Nos. 1 & 3; Mr. R.K. Talukdar, learned standing counsel of Accountant General (A&E) for the respondent No. 5; Mr. S.K. Das, learned counsel for the respondent No. 7. 2. In this petition, under Article 226 of the Constitution of India, the petitioner has prayed for setting aside and quashing the impugned order dated 01.04.2024, issued by the Director of Higher Education, whereby the Principal of D.H.S.K. Commerce College has been directed for initiating recovery proceeding against the present petitioner and also prayed for setting aside and quashing the impugned letter dated 04.04.2024, issued by the Principal of D.H.S.K. Commerce College to the Treasury Officer of Dibrugarh for initiating recovery proceeding against the present petitioner. 3. The background facts, leading to filing of this petition, are briefly stated as under:- “On 03.12.1979, the petitioner was appointed as a Lecturer in Sivasagar Commerce College on fixed pay. Thereafter, on 09.09.1985, her service was regularized by the Director of Higher Education w.e.f. 13.12.1979. The Initial Pay of the petitioner was also fixed under the U.G.C. (Revision of Pay) Rules, 1986 w.e.f. 01.04.1987. Page No.# 4/9 Thereafter, she was transferred to D.H.S.K. Commerce College, Dibrugarh and the respondent authorities had passed an order dated 19.12.1997, giving the benefit of pay protection, after verification of all her service records. In the meantime, she obtained her M.Phil. Degree and Ph.D. Degree and during her career, she duly received the Senior Scale of Pay and Selection Grade Scale of pay and also the applicable increments. Thereafter, she had superannuated from service on 30.09.2016 and from the date of her superannuation, she had been receiving her pension. Thereafter, on 01.04.2024, an order was issued by the Director of Higher Education, Assam directing the Principal of D.H.S.K. Commerce College for initiating steps for recovery of alleged excess drawal of salary from the pension of the petitioner, pursuant to direction of this court, vide orders dated 11.01.2024 and 21.03.2024, passed in W.P.(C) No. 4151/2017. The pleaded case of the petitioner is that a bare perusal of the said orders dated 11.01.2024 and 21.03.2024, of this court would show that there was no direction for recovery of any amount from the petitioner. What the court had observed was that if remedial actions had not been initiated for recovery of excess payments, then similar benefit should be granted to the petitioner in W.P.(C) No. 4151/2017 (the respondent No. 7 herein) and the present petitioner was not a party in the said proceeding. Further pleaded case of the petitioner is that in view of the law laid down by the Hon'ble Supreme Court in the case of State of Punjab & Others vs. Rafiq Masih (White Washer) & Others, reported in (2015) 4 SCC 334 as well as the notification dated 27.01.2022, issued Page No.# 5/9 by the Finance Department, Government of Assam, which prohibits recovery from retired employees as well as when excess payment has been made for a period in excess of 5 years, before the order of recovery is issued.” 4. Mr. Mr. Pathak, learned counsel for the petitioner submits that communication dated 01.04.2024, issued by the Higher Education Department to the Principal of D.H.S.K. Commerce College and letter dated 04.04.2024, issued by the Principal of D.H.S.K. Commerce College to the Treasury Officer of Dibrugarh for initiating recovery proceeding against the present petitioner are contrary to the proposition of law, so laid down by Hon’ble Supreme Court in the case of Rafiq Masih (Supra). Mr. Pathak further submits that in the orders dated 11.01.2024 and 21.03.2024, passed in W.P.(C) No. 4151/2017, this court had never directed the respondent authorities for initiating recovery of any amount from the petitioner and what the court had observed was that if remedial actions had not been initiated for recovery of excess payments, then similar benefit should be granted to the petitioner of the said writ proceeding and that the present petitioner was not a party in the aforementioned writ proceeding. Mr. Pathak further submits that the present petitioner had already retired from her service on 30.09.2016, and since then, almost 7 years elapsed till receipt of the impugned notification dated 01.04.2024. As such, in view of the decision of Hon’ble Supreme Court in the case of Rafiq Masih (Supra), the action of the respondent authorities is illegal and arbitrary and therefore, it is contended to set it aside. 5. On the other hand, Mr. Upamanyu, learned standing counsel of Higher Education Department for the respondent Nos. 1 & 3 submits that in view of the proposition of law laid down by Hon’ble Supreme Court in the case of Rafiq Page No.# 6/9 Masih (Supra), he has not much to submit. But, he has submitted that excess payment was made in respect of the petitioner and as such, the impugned communication dated 01.04.2024 and letter dated 04.04.2024, cannot be said to be arbitrary or illegal. 6. Whereas, Mr. Talukdar, learned standing counsel of Accountant General (A&E) for the respondent No. 5 submits that the respondent No. 5 has nothing to do with the present proceeding and that it has already issued pension payment order to the petitioner herein, which commenced from 01.10.2016. 7. Whereas, Mr. Das, learned counsel for the respondent No. 7 submits that he has nothing to submit in this petition and his grievance in the W.P.(C) No. 4151/2017 is not against the present petitioner. 8. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the petition as well as the documents placed on record and also perused the impugned order dated 01.04.2024, issued by the Director of Higher Education, whereby the Principal of D.H.S.K. Commerce College has been directed for initiating recovery proceeding against the present petitioner and also perused the impugned letter dated 04.04.2024, issued by the Principal of D.H.S.K. Commerce College to the Treasury Officer of Dibrugarh for initiating recovery proceeding against the present petitioner and also perused the decision of Hon’ble Supreme Court in the case of Rafiq Masih (Supra). 9. The basic facts herein this petition are not disputed by the respondents. Annexure – R, at page No. 62 of the petition, indicates that the petitioner has already retired from service and receiving pension w.e.f. 01.10.2016. Since then, more than 7 years elapsed till the date of issuance of impugned communication dated 01.04.2024, made by the Director of Higher Education Department Page No.# 7/9 addressed to the D.H.S.K. Commerce College along with A.D.P. College, Nagaon and Diphu Government College. 10. The law regarding recovery of excess drawal is well settled by Hon’ble Supreme Court in the case of Rafiq Masih (Supra). In paragraph No. 18, Hon’ble Supreme Court has observed as under:- “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 hereinabove, 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 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 Page No.# 8/9 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.” 10. It is to be noted here that Annexure – Y, at page No. 82 of the petition, is a notification, issued by the Principal Secretary to the Government of Assam in Finance Department, as per order of the Governor of Assam, under Memo No. Fin(EC-III).1808/2018/3, whereby all the departments were directed to act in accordance with the law laid down in paragraph No. 18 of the case of Rafiq Masih (Supra). 11. Further, perusal of the orders of this court, dated 11.01.2024 and 21.03.2024, passed in W.P.(C) No. 4151/2017, this court is unable to agree with the submission of Mr. Upamanyu, learned standing counsel for the respondent Nos. 1 & 3 that there was no direction for recovery of excess payment from the petitioner and instead of that, the court had observed that if remedial actions had not been initiated for recovery of excess payments, then similar benefit should be granted to the petitioner of the said writ proceeding, who is the respondent No. 7 in this petition. 12. Thus, having tested the impugned letter dated 01.04.2024, issued by the Director of Higher Education Department to the Principal of D.H.S.K. Commerce College and letter dated 04.04.2024, issued by the Principal of D.H.S.K. Commerce College to the Treasury Officer of Dibrugarh for initiating recovery proceeding for excess drawal of salary, in absence of any definite finding to that effect also, this court is of the considered opinion that the same is contrary to the proposition of law laid down by Hon’ble Supreme Court in the case of Rafiq Masih (Supra). And as such, the same fails to withstand the legal scrutiny. Page No.# 9/9 Accordingly, both the communications stand set aside and quashed. 13. In terms of above, this writ petition stands disposed of. JUDGE Comparing Assistant