Page No.# 1/7 GAHC010103482025 2025:GAU-AS:11381 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/2678/2025 BHAIRAB CH DAS S/O LATE KEDAR CH. DAS R/O VILLAGE- TILAPARA, P.O. AND P.S.- GOALPARA, DISTRICT- GOALPARA, ASSAM VERSUS THE STATE OF ASSAM AND 6 ORS. REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM, SECONDARY EDUCATION DEPARTMENT, DISPUR, GUWAHATI - 6 2:THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM FINANCE DEPARTMENT DISPUR GUWAHATI - 6. 3:THE SECRETARY TO THE GOVT. OF ASSAM DEPARTMENT OF SCHOOL EDUCATION DISPUR GUWAHATI-06. 4:THE DIRECTOR OF SECONDARY EDUCATION ASSAM KAHILIPARA GUWAHATI-19. 5:ACCOUNTANT GENERAL (A AND E) Page No.# 2/7 ASSAM MAIDAMGAON BELTOLA GUWAHATI-29 6:THE TREASURY OFFICER GOALPARA ASSAM 7:THE INSPECTOR OF SCHOOL GDC GOALPARA ASSA Advocate for the Petitioner : MR H DAS, D BARUAH Advocate for the Respondent : SC, SEC. EDU., SC, AG,SC, FINANCE BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER 21.08.2025 Heard Mr. H. Das, learned counsel for the petitioner and Mr. U Sarma, learned Standing Counsel for the respondent Nos. 1, 3, 4 & 7. Also heard Mr. B. Chakravarty, learned Standing Counsel for the respondent No. 5. 2. In this petition under Article 226 of the Constitution of India, the petitioner has challenged the letter, dated 04.01.2022 (Annexure-1), so issued on the basis of an Audit Report, for recovery of an excess drawal of a sum of Rs. 2,81,871/-, from the petitioner. He also prayed for issuing direction to the respondent authorities to waive the excess drawal of Rs. 2,81,871/-, which was caused due to wrong fixation of salary by the then Accountant and the then Inspector of Schools, GDC, Goalpara, on 01.11.2011, and upon such fixation, to direct the respondent authorities to release all the retirement and pensionary benefits of the petitioner, Page No.# 3/7 which he is entitled to, after his retirement on 29.02.2020. 3. Mr. Das, learned counsel for the petitioner submits that the petitioner was serving as a Senior Assistant (Grade-III), and he retired on superannuation on 29.02.2020, and after his retirement, he had submitted his pension papers, and the same were forwarded by the then Inspector of Schools, GDC, Goalpara, to the Director, Secondary Education, Assam, and also to the Accounts Officer of the Office of the Accountant General (A&E), Assam, and then the Accounts Officer of the Office of the Accountant General (A&E) had returned the file of the petitioner to the Inspector of Schools, GDC, Goalpara, on the ground that there was wrong fixation of grade pay as on 01.01.2011, instead of 01.11.2011, and the same was caused by the then Accountant and the then Inspector of Schools, GDC, Goalpara. Mr. Das also submits that the petitioner had filed an application for waiving the recoveries, after his retirement from his service; as the wrong fixation was not committed by the petitioner. But, the respondent authorities neither waived the recoveries of his excess drawal, nor re-fixed his pay, and that his pensionary benefits, are yet to be released since his retirement on 01.03.2020. 3.1. Referring to a decision of the Hon’ble Supreme Court in the case of State of Punjab & Ors. Vs. Rafiq Masih (White Washer), reported in 2015 (4) SCC 334, and another decision of the Hon’ble Supreme Court in the case of Thomas Daniel Vs. State of Kerala & Ors., reported in (2022) 4 SCR 606; and further on the basis of the notification of the Government of Assam, dated 27.01.2022, Mr. Das submits that since the petitioner had already retired from service in the year 2020 itself, the amount of excess drawal cannot be recovered from the pensionary benefits of the petitioner, and as such, Mr. Das has contended to allow this petition, by directing the respondent authorities to waive the excess drawal amount and to re-fix his pay and thereafter to release his pensionary benefits. Page No.# 4/7 4. Mr. U. Sarma, learned Standing Counsel for the respondent in Secondary Education Department, submits that on the basis of the decision of the Hon’ble Supreme Court in the case of Rafiq Masih (supra), and also on the basis of the Notification dated 27.01.2022, issued by the Government of Assam, this writ petition may be disposed of. 5. Mr. Chakravarty, learned Standing Counsel for the Accountant General (A&E), Assam, referring to Clause-IX of the O.M. dated-14.06.2019, submits that when the amount is above one lakh rupees, then express approval of the Finance Department has to be obtained for waiving the same. 6. Having heard the submissions, so advanced by the learned counsel for both the parties, I have carefully gone through the petition and the documents placed on record and also gone through the decisions of the Hon’ble Supreme Court in the cases of Rafiq Masih (supra) and Thomas Daniel (supra), and also the Notification dated 27.01.2022, and the O.M. dated 14.06.2019. 7. It is to be noted here that the respondent authorities have not filed their affidavit-in-opposition. 8. In the instant case, the basic facts are not in dispute. The petitioner retired on superannuation from the post of Senior Assistant (Grade-III), on 29.02.2020, and after his retirement, he had submitted his pension papers and the same were forwarded by the then Inspector of Schools, GDC, Goalpara, to the Director of Secondary Education, Assam and also to the Accounts Officer of the Office of the A.G. (A&E), Assam. But, the Accounts Officer of the Office of the A.G. (A&E), Assam, had returned the pension papers of the petitioner on the ground of wrong fixation of his grade pay on 01.01.2011, instead of 1.11.2011; and it is categorically stated by the petitioner in his petition that the wrong fixation was caused by the then Accountant and the then Inspector of Schools, GDC, Goalpara. Page No.# 5/7 9. It is to be noted here that on the basis of the decision of the Hon’ble Supreme Court in the case of Rafiq Masih (supra), while dealing with the issue has held 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 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.” 9.1. And the Government of Assam, based upon the aforesaid decision, had issued one Notification on 27.01.2022, incorporating the said situations of the Hon’ble Supreme Court in para No. 18, which needs no reiteration here. 9.2. In the case of Thomas Daniel (supra), reiterating the principles laid Page No.# 6/7 down in the case of Rafiq Masih (supra), Hon’ble Supreme Court has held that when the excess amount has been paid not on account of misrepresentation or fraud prayed by the petitioner and when the excess payment was made due to mistake in interpreting service rules then an attempt to recover the same after 10 years of retirement is unjustified. 10. In the present case, the petitioner had retired from service on 29.02.2020. Till date, more than five years elapsed. The impugned letter, dated 04.01.2022, was issued after almost 2 years of his retirement. Further, it appears that the case of the petitioner is squarely covered by clause - I of paragraph No.18 of the decision of Hon’ble Supreme Court in Rafiq Masih (supra), and also Clause-I of the Notification, dated 27.01.2022, and by the decision of Thomas Daniel (supra); as discussed herein above. 11. Thus, the direction issued in the impugned letter, dated 04.01.2022, so far the recovery part is concerned, appears to be contrary to the Government Notification, dated 27.01.2022, and also the decision of the Hon’ble Supreme Court in the case of Rafiq Masih (supra), and also in the case of Thomas Daniel (supra). 12. Under such circumstances, the impugned letter dated 04.01.2022, so far it relates to the recovery of the amount of Rs. 2,81,871/-, from the petitioner is concerned; is liable to be interfered with and accordingly, the same stands set aside and quashed. 13. In the result, I find sufficient merit in this petition and accordingly, the same stands allowed. By a mandamus of this Court the respondent authorities are directed to waive the excess drawal, made by the petitioner during the period of his service, and also to release his pensionary benefits, within a period of 4 (four) weeks from today; as per his entitlement. Page No.# 7/7 14. The petitioner shall obtain the certified copy of this order and place the same before the respondent authorities, within a period of 1 (one) week from today. The parties have to bear their own costs. JUDGE Comparing Assistant