Page No.# 1/12 GAHC010176882022 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/5743/2022 SABEN BASUMATARY S/O. LT. LATER BASUMATARY, VILL. TICKLOW CHUBA, P.O. BATAKUCHI, P.S. TANGLA, DIST. UDALGURI, BTAD, ASSAM, PIN-784510. VERSUS THE STATE OF ASSAM AND 6 ORS REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, IRRIGATION DEPTT., DISPUR, GUWAHATI-06. 2:THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM PENSION AND PUBLIC GRIEVANCES DEPTT. DISPUR GUWAHATI-06. 3:THE CHIEF ENGINEER IRRIGATION DEPTT. 2ND BLOCK-B KRISHNA NAGAR CHANDMARI GUWAHATI-03. 4:THE ACCOUNTANT GENERAL (A AND E) MAIDAMGAON BELTOLA GUWAHATI-29. 5:THE BODOLAND TERRITORIAL COUNCIL Page No.# 2/12 REP. BY THE SECRETARY IRRIGATION DEPTT. BODOFANAGAR KOKRAJHAR DIST. KOKRAJHAR BTAD ASSAM PIN-783370. 6:THE EXECUTIVE ENGINEER TANGLA DIVISION (IRRIGATION) TANGLA DIST. UDALGURI ASSAM PIN-784509. 7:THE TREASURY OFFICER UDALGURI DIST. UDALGURI BTAD ASSAM PIN-784509 Advocate for the Petitioner : MR. K R PATGIRI, MS K BARMAN,MS CHITRALEKHA DAS Advocate for the Respondent : SC, IRRIGATION, GA, ASSAM,SC, AG,SC, BTC,SC, FINANCE BEFORE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA ORDER 19.03 .2025 Heard Mr. K.R. Patgiri, learned counsel for the petitioner. Also heard Mr. T.C. Chutia, learned Addl. Senior Government Advocate for the State, Mr. C. Baruah, learned Standing Counsel, Accountant General, Ms. D.S. Neog, learned Standing Counsel, Irrigation Department. This writ petition has been filed by the petitioner, who was serving as a Muster Roll Worker in the Office of the Executive Engineer, Tangla Division, (Irrigation), Tangla in the district of Udalguri, Assam. He has been serving from Page No.# 3/12 the date of his joining in the post, which is 01.01.1992. His post was thereafter, regularized as a Chowkidar w.e.f. 22.07.2005 and he continued to render his service till his date of superannuation, which is 31.10.2017. According to the respondents, although, the petitioner was released from service w.e.f. 31.10.2017, he ought to have been superannuated on 31.01.2017 on attaining the age of his superannuation. Since, the petitioner had overstayed his service, the salary for the period which he was overstayed in service has been recovered from his unutilized earn leave encashment. Furthermore, the pension proposal papers which were prepared and forwarded by the Department has not been processed on the ground that the petitioner did not complete 30 years of the net qualifying service and only sanctioned the terminal gratuity. Being aggrieved, the petitioner approached before this Court. The learned counsel for the petitioner has made two fold submissions before this Court. Firstly, he submits that in view of the law laid down by the Apex Court in State of Punjab Vs. Rafiq Masih (White Washer) reported in (2015) 4 SCC 334 followed by several other judgments and orders passed by this Court. The petitioner being employed in a Grade-IV post and his period of overstay could not be attributed and was because of miscalculation on the part of the respondents and therefore the amount of salary drawn by the petitioner during that period of overstay could not have been recovered. Such action is contrary to the law laid down in State of Punjab Vs. Rafiq Masih (White Washer) reported in (2015) 4 SCC 334. His second submission before this Court is that the contention of the respondents that he did not complete the required service period and the contention of the respondents that he is not entitled to pensionary benefits as he is not completed 20 years is also disputed. It is Page No.# 4/12 submitted that his entire service period was for about 25 years 01 month and in terms of notification dated 20.05.2009 issued by the Government of Assam, the services rendered by Muster Roll Workers are to be counted towards their pensionary benefits after reduction of the initial 06 years of services rendered as a Muster Roll Worker. The learned counsel for the petitioner submits that this issue came up before the Co-ordinate Bench of this Court and by judgment and order dated 04.12.2018 passed in Sanjita Roy Vs. State of Assam and Ors., the Court has directed that such deduction was held to be unreasonable and not fair and it was directed that the authorities concerned will determine the continuous length of service of petitioner therein, who had also rendered services as Muster Roll Workers while processing their services entitlements including pensionary benefits. This judgment came to be upheld in a writ appeal by a Division Bench of this Court by order dated 26.02.2021 passed in Writ Appeal No.18 of 2021. By the said writ appeal the judgment rendered in Sanjita Roy Vs. State of Assam and Ors. was came to the effect. He therefore, submits that in view of settled position of law the denial of the claim of the petitioner is unfounded and contrary. The learned counsel for the respondents have disputed the contentions raised by the petitioner and have referred to the affidavits filed by the respondents. The learned counsel for parties have been heard and the pleadings available on record have been carefully perused. The judgment rendered by the Co-ordinate Bench in Sanjita Roy (supra) as well as by the Division Bench in Binapani Das Vs. State of Assam and Ors. has been carefully perused. In the judgment of Sanjita Roy Vs. State of Assam and Ors. the petitioner before the Page No.# 5/12 Court were also Muster Roll Worker whose service benefits were held by the respondent Department therein, to be not payable in view of the Office Memorandum/Notification dated 20.05.2009. This was not held to be permissible and the benefits were directed to be granted to the petitioner therein, by taking into account the continuous length of service rendered by the Muster Roll Workers. This view came to be upheld in Writ Appeal No. 18/2021 of Binapani Das (supra). Under such circumstances, the fact that while deciding the entitlement to pensionary benefits of Muster Roll Workers their continuous length of service is required to be undertaken has been settled by this Court and the same is therefore binding on this Court. Under such circumstances, it is held that the deduction of six years of service from the continuous length of service rendered by the petitioner as Muster Roll Worker is contrary to law declared by this Court. Accordingly, the respondents are directed to take into account the entire service length of the writ petitioner while calculating the pensionary benefits and other service benefits found to be entitled to the writ petitioner. The other ground urged before this Court regarding the recovery of the salary for the period overstayed by the petitioner is also an issue which is settled by the Apex Court in Rafiq Masih (supra). In State of Punjab Vs. Rafiq Masih (White Washer) reported in (2015) 4 SCC 334, the Apex Court held as under: “15. Examining a similar proposition, this Court in B.J. Akkara v. Govt. of India observed as under : (SCC pp. 728-29, para 28) Page No.# 6/12 "28. Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery." (emphasis supplied) A perusal of the aforesaid observations made by this Court in B.J. Akkara case® reveals a reiteration of the legal position recorded in the earlier judgments rendered by this Court, inasmuch as, it was again affirmed, that the right to recover would be sustainable so long as the same was not iniquitous or arbitrary. In the observation extracted above, this Court also recorded, that recovery from the employees in lower rung of service, would result in extreme hardship to them. The apparent explanation for the aforesaid conclusion Page No.# 7/12 is, that the employees in lower rung of service would spend their entire earnings in the upkeep and welfare of their family, and if such excess payment is allowed to be recovered from them, it would cause them far more hardship, than the reciprocal gains to the employer. We are therefore #atisfied in concluding, that such recovery from employees belonging to the lower rungs (i.e. Class Ill and Class IV-sometimes denoted as Group C and Group D) of service, should not be subjected to the ordeal of any recovery, even though they were beneficiaries of receiving higher emoluments, than were due to them. Such recovery would be iniquitous and arbitrary and therefore would also breach the mandate contained in Article 14 of the Constitution of India. 16. This Court in Syed Abdul Qadir v. State of Bihar® eld as follows : (SCC pp. 491-92, para 59) "59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter-affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. The learned counsel appearing on behalf of the Page No.# 8/12 appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made." Premised on the legal proposition considered above, namely, whether on the touchstone of equity and arbitrariness, the extract of the judgment reproduced above, culls out yet another consideration, which would make the process of recovery iniquitous and arbitrary. It is apparent from the conclusions drawn in Syed Abdul Qadir case, that recovery of excess payments, made from the employees who have retired from service, or are close to their retirement, would entail extremely harsh consequences outweighing the monetary gains by the employer. It cannot be forgotten, that a retired employee or an employee about to retire, is a class apart from those who have sufficient service to their credit, before their retirement. Needless to mention, that at retirement, an employee is past his youth, his needs are far in excess of what they were when he was younger. Despite that, his earnings have substantially dwindled (or would substantially be reduced on his retirement). Keeping the aforesaid circumstances in mind, we are satisfied that recovery would be iniquitous and arbitrary, if it is sought to be made after the date of retirement or soon before retirement. A period within one year from the date of superannuation, in our considered view, should be accepted as the period during which the recovery should be treated as iniquitous. Therefore, Page No.# 9/12 it would be justified to treat an order of recovery, on account of wrongful payment made to an employee, as arbitrary, if the recovery is sought to be made after the employee's retirement, or within one year from the date of his retirement on superannuation. 17. Last of all, reference may be made to the decision in Sahib Ram v. Union of India? wherein it was concluded as under: (SCC pp. 19-20, paras 4-5) "4. Mr Prem Malhotra, learned counsel for the appellant, contended that the previous sale of Rs 220-550 to which the appellant was entitled became Rs 700-1600 since the appellant had been granted that scale of pay in relaxation of the educational qualification. The High Court was, therefore, not right in dismissing the writ petition. We do not find any force in this contention. It is seen that the Government in consultation with the University Grants Commission had revised the pay scale of a Librarian working in the colleges to Rs 700-1600 but they insisted upon the minimum educational quaification of first or second class MA, MSc, MCom plus a first or second class BLib Science or a Diploma in Library Science. The relaxation given was only as regards obtaining first or second class in the prescribed educational qualification but not relaxation in the educational qualification itself. 5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had Page No.# 10/12 been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply lo the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs." (emphasis supplied) It would be pertinent to mention, that Librarians were equated with Lecturers, for the grant of the pay scale of Rs 700-1600. The above pay parity would extend to Librarians, subject to the condition that they possessed the prescribed minimum educational qualification (first or second class MA, MSc, MCom plus a first or second class BLib Science or a diploma in Library Science, the degree of MLib Science being a preferential qualification). For those Librarians appointed prior to 3-12-1972, the educational qualifications were relaxed. In Sahib Ram case, a mistake was committed by wrongly extending to the appellants the revised pay scale, by relaxing the prescribed educational qualifications, even though the appellants concerned were ineligible for the same. The appellants concerned were held not eligible for the higher scale, by applying the principle of "equal pay for equal work". This Court, in the above circumstances, did not allow the recovery of the excess payment. This was apparently done because this Court felt that the employees were entitled to wages, for the post against which they had discharged their Page No.# 11/12 duties. In the above view of the matter, we are of the opinion, that it would be iniquitous and arbitrary for an employer to require an employee to refund the wages of a higher post, against which he had wrongfully been permitted to work, though he should have rightfully been required to work against an inferior post. 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 Ill and Class IV service (or Group C and Group D service). (il) 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 Page No.# 12/12 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.” In view of the clear law laid down by the Apex Court there should be no claim in this aspect of the matter that where the petitioner is overstaying is due to reasons or faults which cannot be attributed to the petitioner, the amount of salary which the petitioner was entitled to could not have been deducted by the respondents. In view of the fact that the petitioner was rendering his services in a Grade-IV post, accordingly, this writ petition stands allowed. The amount of salary overdrawn should be released forthwith within a period of eight weeks from the date of receipt of a certified copy of this order. The respondents are also directed to process the pension paper and release all pensionary benefits and other service benefits to the writ petitioner in terms of by taking into account the continuous length of service rendered by the petitioner as has been held by this Court in Binapani Das Vs. State of Assam and Ors. The writ petition accordingly stands allowed and disposed of. Interim order, if any stands merged. Pending Interlocutory Application is also dismissed. JUDGE Comparing Assistant