Page No.# 1/5 GAHC010163422024 2025:GAU-AS:2545 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/4099/2024 BISTURAM DOLEY S/O LATE MIJU RAM DOLEY RESIDENT OF MADHYAPUR VILLAGE PO AND PS JONAI, DIST DHEMAJI, ASSAM VERSUS THE STATE OF ASSAM AND 3 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, EDUCATION (SECONDARY) DEPARTMENT, DISPUR GUWAHATI 781006 2:THE DIRECTOR OF SECONDARY EDUCATION ASSAM KAHILIPARA GUWAHATI 19 3:THE INSPECTOR OF SCHOOLS DHEMAJI DIST CIRCLE DHEMAJI ASSAM 4:THE DIRECTOR OF PENSION ASSAM DISPUR GUWAHATI 0 Advocate for the Petitioner : MR. R ALI, MR. MUSTAFA HUSSAIN,MR H A AHMED Advocate for the Respondent : GA, ASSAM, MR. N J KHATANIAR,SC, SEC. EDU. Page No.# 2/5 BEFORE HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY ORDER 11.03.2025 1. Heard Mr. R. Ali, learned counsel for the petitioner. Also heard Mr. N. J. Khataniar, learned Standing Counsel for the Secondary Education Department, representing the respondents. 2. The petitioner was appointed on 23.08.1980 as Demonstrator in Physics and posted at Jonai Higher Secondary School, Jonai in the District of Dhemaji and retired from service on 31.12.2013. After retirement, his employer i.e., In-Charge Principal of the said School forwarded all necessary documents along with the service book of the petitioner for the payment of his pensionary benefit along with other benefit to the Director of Secondary Education, Assam through the Inspector of School, Dhemaji. Thereafter, the Director of Secondary Education, Assam by order dated 08.06.2015 sanctioned the provisional pension to the petitioner, with effect from 01.01.2014 till finalization of pension. Thereafter, the Director of Secondary Education, Assam sanctioned all the benefits and pension proposal of the petitioner and had forwarded the same to the Director of Pension for final approval. 3. After receipt the pension papers of the petitioner, the Director of Pension, found some anomalies and returned the pension papers to the Inspector of School on the ground that the pay of the petitioner is to be re-fixed at Rs. 21790/- as on 01.01.2006 instead of Rs. 22390/- and directed to furnish the statement of excess drawl by examining the service book and the pension paper and to re-submit the pension proposal by removing the deficiency. 4. Thereafter, the Inspector of School, Dhemaji after re-examining the pension Page No.# 3/5 papers of the petitioner, submitted the fresh proposal and found excess drawl of an amount of Rs. 95,671/- before the Director of Pension and directed the petitioner to deposit the excess drawl amount of Rs. 95,671/- through treasury challan. 5. Accordingly, finding no alternative, the petitioner deposited the aforesaid amount through treasury challan before the Sub Treasury, Jonai on 26.02.2019 and informed the same to the Inspector of School, Dhemaji. Thereafter, the Director of Pension issued final pension payment order on 23.05.2019 in favour of the petitioner. 6. Mr. Ali, learned counsel for the petitioner referring to the letter dated 05.05.2017 issued by the Inspector of Schools submits that initially the scale of pay of the petitioner has been fixed at Rs. 21,790/- with effect from 01.01.2006, but as per Finance (Pay Research Unit), Department, Govt. of Assam’s office memorandum No. FPC. 85/2009/Pt/110 dated 01-06.2012 and in terms of decisions of the government to relax Rule 10 of A.S.(ROP) Rules, 2010, to grant those State Govt. employee who were due to get their annual increment between February to June during 2006, one increment on 01.01.2006 in the pre-revised pay scale as one time measure, the petitioner’s pay was re-fixed at Rs. 22,390/- with effect from 01.01.2006 instead of Rs.21,790/- and therefore, there is no excess drawl in this regard. 7. Per contra, the learned counsel for the respondents contends that they are not disputing the communication dated 05.05.2017 issued by the Inspector of Schools, Dhemaji, which gives the explanation that there was no excess drawl rather higher scale of pay was granted taking note of office memorandum dated 01.06.2012 issued by Finance (Pay Research Unit) Department, Government of Assam. Page No.# 4/5 8. Thus, it is clear that though the reason of recovery is relatable to an excess payment made to the petitioner by his employer, however, the Inspector of School himself confirms that the enhanced scale of pay granted rightly, however, the Finance & Accounts Officer in the office of Director of Pension, Assam has not considered such representation or disclosed anything for rejection of such explanation given by the Inspector of Schools, in its communication dated 10.01.2018. It is also to record that the Finance & Accounts Officer in the office of the Director of Pension again intimated the Inspector of Schools, by its communication dated 24.05.2018 that if the excess payment is not due to misrepresentation or fraud on the part of the petitioner, the head of department may waive the same with the approval of the Finance Department. However, nothing has been done rather the pension of the petitioner was withheld till he deposited the excess drawl in the treasury. 9. It is by now well settled that when an employee is paid a scale of pay to which the employee is not entitled to, however, by wrong/miss-calculation such payments were made for no fault of such pensioner, the said amount shall not be recovered from the pension of the employee. In the case in hand, there is no whisper by the employer that it was the petitioner who manipulated or mis- presented in granting him higher scale of pay, rather, as recorded herein above, it is an admitted position that excess payment made was due to wrong calculation inasmuch as the Inspector of School in its’ communication dated 05.05.2017 justified such calculation. The fact also remains that in terms of Notification dated 14.06.2019 issued by the Finance Department, Government of Assam, in such a circumstances, the employer is empowered to waive such recovery. But the employer has not even applied their mind to such a procedure notified by the State. 10. In the totality of the matter, considering the law laid down in this regard by the Page No.# 5/5 Hon’ble Apex Court in the case of State of Punjab & Ors –Vs- Rafiq Masih (Whitewasher) reported in (2015) 4 SCC 334, the present writ petition stands allowed by setting aside and quashing the impugned decision to recover an amount of Rs. 95,671/- only from the pension of the pensioner. Accordingly, the Director of Secondary Education, Assam i.e., the respondent No. 2. as well as the Director of Pension i.e., the respondent No. 4 are directed to re-sanction of Rs. 95,671/- which had been refunded by the petitioner to the Government of Assam as excess drawl of salary during his service tenure and returned the same to the petitioner within a period of 3(three) months from the receipt of a certified copy of this order to be furnished by the petitioner to the respondent Nos. 2 and 4. If such amount is not returned within the aforesaid stipulated period, the same shall carry an interest @ 9% P.A. 11. The writ petition stands disposed of. Parties to bear their own cost(s). JUDGE Comparing Assistant