Page No.# 1/5 GAHC010202582025 2025:GAU-AS:13624 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/5341/2025 MRS JAHURA KHATUN WIFE OF LATE ABDUL RAHIM, VILLAGE- KANDURA PATHAR, P.O. DEJOO, DIST. - LAKHIMPUR, ASSAM, PIN- 787031. VERSUS THE STATE OF ASSAM AND 5 ORS TO BE REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM, DEPARTMENT OF ELEMENTARY EDUCATION. 2:THE DIRECTOR OF ELEMENTARY EDUCATION KAHILIPARA GUWAHATI-19. 3:THE DIRECTOR OF PENSION ASSAM HOUSEFED COMPLEX DISPUR GUWAHATI-6. 4:THE FINANCE AND ACCOUNTS OFFICER DIRECTORATE OF PENSION ASSAM GUWAHATI-6. 5:THE DISTRICT ELEMENTARY EDUCATION OFFICER LAKHIMPUR. 6:THE BLOCK ELEMENTARY EDUCATION OFFICER NOWBEICHA LAKHIMPUR ASSAM Page No.# 2/5 Advocate for the Petitioner : MR C GOSWAMI, B R SAH Advocate for the Respondent : GA, ASSAM, SC, FINANCE,SC, ELEM. EDU BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER 13.10.2025 Heard Mr. C. Goswami, learned counsel for the petitioner; Mr. P.N. Sarma, learned standing counsel for the Elementary Education Department, being respondent nos. 1, 2, 5 & 6; and Ms. D.D. Barman, learned Senior Government Advocate for the respondent Nos. 3 & 4. 2. In this petition, under Article 226 of the Constitution of India, the petitioner has challenged the letters, No. ADP/2016-17/2016/12/0106, dated 09.01.2024 and No. DEEO/L/Pen/134/2016/1756, dated 17.07.2025 (Annexure Nos. C & E) and also to direct the respondent authorities to release her regular family pension, without recovery of alleged excess drawal. 3. Mr. Goswami, learned counsel for the petitioner submits that late Abdul Rahim, the husband of the petitioner, was serving as Headmaster of Rampur M.E. Madrassa, under the Block Elementary Education Officer, Nowbeicha and he died on 28.01.2016, while in service. Thereafter, necessary family pension papers had been submitted by the petitioner, through the proper channel, before the respondent authorities. However, the pension authority has raised objection vide letter dated 09.01.2024, with an allegation of excess drawal and in response to the aforesaid letter, the District Elementary Education Officer, Lakhimpur, vide letter dated 17.07.2025, had requested the petitioner to return the excess drawal amount, i.e. Rs. 2,19,098/. 3.1. Mr. Goswami further submits that in view of the decision of Hon’ble Supreme Page No.# 3/5 Court in the case of State of Punjab & Others vs. Rafiq Masih (White Washer), reported in 2015 (4) SCC 334, the respondent authorities are not entitled to recover the aforesaid amount as the husband of the petitioner is not responsible for excess drawal and as such, this writ petition may be disposed of by directing the respondent authorities to process the pension papers, without insisting upon the recovery process of excess drawal amount. 4. Per-contra, Mr. Sarma, learned standing counsel for the Elementary Education Department, being respondent nos. 1, 2, 5 & 6 and Ms. Barman, learned Senior Government Advocate for the respondent Nos. 3 & 4 submit that in view of the settled legal proposition, in the case of Rafiq Masih (Supra), they have no objection in the event of disposing of this petition by directing the respondent authorities to release the pension of the petitioner without insisting upon the recovery of excess drawal amount, i.e. Rs. 2,19,098/-. 5. 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 decision of Hon'ble Supreme Court in the case of Rafiq Masih (Supra). 6. It is to be noted here that in the case of Rafiq Masih (Supra), Hon’ble Supreme Court has held that recovery of excess drawal amount from the retired employee is impressible, in view of the point No. 2 of paragraph No. 18 of the said judgment, if the employee is not at all responsible for the same. 7. The relevant portion of paragraph No. 18 of the said judgment is reproduced herein below:- "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 Page No.# 4/5 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." 8. In the instant case, admittedly, the husband of the petitioner was serving as Headmaster of Rampur M.E. Madrassa, under the Block Elementary Education Officer, Nowbeicha and he died on 28.01.2016, while in service and his family pension papers are yet to be settled on account of objection being raised vide letter dated 09.01.2024 and the ground for non-settlement of the pension papers is excess drawal of Rs. 2,19,098/-, as reflected in the letter dated 17.07.2025. 9. But, there is nothing on the record to show that on account of the fault of the husband of the petitioner, the excess drawal was made and that the husband Page No.# 5/5 of the petitioner already suffered demise while he was in service and as such, in view of the Clause No. 2 of paragraph No. 18 of Rafiq Masih (Supra), the respondent authorities are not entitled to recover the alleged excess drawal amount. 10. Under the given factual and legal matrix, this Court is inclined to dispose of this petition by directing the respondent authorities to release the regular family pension of the petitioner without any recovery of the alleged excess drawal. 11. The aforesaid exercise has to be carried out within a period of 2 (two) months from the date of receipt of the certified copy of this order. 12. The petitioner shall obtain a certified copy of this order and place the same before the respondent authorities within a period of 1 (one) week from today. JUDGE Comparing Assistant