Page No.# 1/5 GAHC010088032024 2025:GAU-AS:10595 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/2453/2024 JAHANARA ABEDIN W/O LATE ABDUL AMTIN ALI, R/O VILL- KALDOBA PART-I, P.O.-AGOMONI, P.S.-AGOMONI, DIST-DHUBRI, ASSAM, PIN-783335 VERSUS THE STATE OF ASSAM AND 6 ORS REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF ASSAM, DEPARTMENT OF SCHOOL EDUCATION, DISPUR, GUWAHATI-781006 2:THE SECRETARY GOVERNMENT OF ASSAM FINANCE DEPARTMENT DISPUR GUWAHATI-781006 3:THE DIRECTOR ELEMENTARY EDUCATION ASSAM KAHILIPARA GUWAHATI-781019 4:THE DIRECTOR OF PENSION ASSAM HOUSEFED COMPLEX DISPUR GUWAHATI-781006 5:THE DISTRICT ELEMENTARY EDUCATION OFFICER DHUBRI P.O. AND P.S.-DHUBRI DIST-DHUBRI ASSAM PIN-783301 Page No.# 2/5 6:THE DEPUTY INSPECTOR OF SCHOOLS DHUBRI P.O. AND P.S.-DHUBRI DIST-DHUBRI ASSAM PIN-783301 7:THE BLOCK ELEMENTARY EDUCATION OFFICER AGOMONI P.O. AND P.S.-AGOMONI DIST- DHUBRI ASSAM PIN-78333 Advocate for the Petitioner : MR. R ISLAM, MR G U AHMED Advocate for the Respondent : SC, ELEM. EDU, GA, ASSAM,SC, FINANCE BEFORE HON’BLE MR. JUSTICE NELSON SAILO O R D E R 12.08.2025 Heard Mr. R. Islam, learned counsel for the petitioner, Ms. B. Deka, learned Standing Counsel, Elementary Education Department for the respondent Nos. 1, 3, 5, 6 & 7, Ms. R.M. Barua, learned Standing Counsel, Finance Department for the respondent No.2 and Ms. D.D Barman, learned Additional Senior Government Advocate for the respondent No.4. 2. Having regard to the nature of the case projected by the petitioner and the issue involved, the writ petition is taken up for disposal at this stage. 3. Brief facts essential for disposal of this writ petition is that the petitioner joined service as a Stipendiary Teacher of Shernagar L.P School on 26.02.1974 and her service was regularized w.e.f. 01.12.1974. Subsequently, she was confirmed in service on 03.08.1989 as an Assistant Page No.# 3/5 Teacher. Consequently, the petitioner retired on 30.04.2017 as Head Teacher. Although the respondent No.6 submitted the pension papers and proposal along with all related documents to the respondent No.4 for finalization of regular pension and other pensionery benefits entitled to the petitioner, but on scrutiny it was detected that there was an excess drawal of Rs.3,62,248/- on account of wrong fixation of pay. It is for this reason that the pension case of the petitioner could not be finalized and aggrieved, the petitioner is before this Court. 4. Learned counsel for the petitioner submits that according to the respondent authorities, the pay of the petitioner was wrongly fixed at Rs.1685/- instead of Rs.1555/- as on 01.01.1989 and on account of such wrong fixation, the excess drawal of pay had occurred. The learned counsel further submits that excess drawal is not attributable to any misrepresentation or fraud on the part of the petitioner and it was solely on account of some mistake committed by the authorities while fixing the pay of the petitioner and therefore, in view of the Apex Court’s decision in State of Punjab and others –vs- Rafiq Masih (White Washer) and others, reported in (2015) 4 SCC 334, the excess amount drawn by the petitioner should not be recovered from her and should be waived for finalization of her pension and other benefits. Learned counsel for the petitioner also submits that the Deputy Inspector of Schools, Dhubri in his letter dated 11.08.2021 (Annexure-I) to the Director of Elementary Education, Assam had clearly stated that the excess drawal was not attributed to any fault on the part of the petitioner. Learned counsel for the petitioner thus submits that the writ petition may be allowed as prayed for. 5. Per-contra, Ms. D.D Barman, learned Additional Senior Government Page No.# 4/5 Advocate has drawn the attention of this Court to the Notification dated 27.01.2022 (Annexure-J), wherein it has been provided that the Pension and Public Grievance Department is empowered to waive recovery with a financial ceiling of Rs.1,00,000/- and beyond Rs.1,00,000/-, the express approval of the Finance Department is to be obtained. However, it also provides that in terms of the Cabinet decision dated 28.10.2021, the Director of Pension has been authorized to waive excess drawal up to Rs.3,00,000/- in respect of provincialised school teachers and PRIs exclusively with the condition summarized by the Apex Court in Rafiq Masih (White Washer) and others (supra). She submits that since the amount in the instant case is beyond Rs.3,00,000/-, the approval of the Finance Department will have to be sought. Similar submissions have been made by Ms. R.M. Barua, learned Standing Counsel, Finance Department and Ms. B. Deka, learned Standing Counsel, Elementary Education Department. 6. I have considered the submissions made by the learned counsel for the rival parties and perused the materials available on record. 7. The communication dated 11.08.2021 made by the Deputy Inspector of Schools, Dhubri to the Director of Elementary Education, Assam importantly certifies that the excess drawal that has occasioned is not attributable to any misrepresentation or fraud etc., on the part of the petitioner. The Apex Court in Rafiq Masih (White Washer) and others (supra) postulates as many as five situations under which recovery of excess drawal would be impermissible as can be seen from the paragraph- 18 of the said judgment. Paragraph-18(i) provides that it would be impermissible to made recoveries from employees belonging to Class-III Page No.# 5/5 and Class-IV service or Group-C and Group-D service, where payment has mistakenly been made by the employer in excess of their entitlement. As already noticed, the Deputy Inspector of Schools, Dhubri had clearly certified that the petitioner is not responsible for such wrong fixation of pay. The Apex Court’s decision also does not fix a ceiling for waiving such excess drawal. 8. Under the circumstances, the decision of the Apex Court being squarely applicable to the petitioner, this Court is of the considered view that the amount of Rs.3,26,248/- said to be excess drawal will not be recoverable from the petitioner. 9. It is ordered accordingly. 10. The respondents will however be at liberty to re-fix the pay of the petitioner for finalization of pension. Such process be undertaken and completed as expeditiously as possible, but within the outer limit of two months from the date of receipt of a certified copy of this order. 11. The writ petition is accordingly disposed of as allowed. No cost. JUDGE Comparing Assistant