Page No.# 1/9 GAHC040008872025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH) Case No. : WP(C)/246/2025 Ram Sewak Mahato son of Late Timal Mahato, resident of Sagum Village, PO and PS Srirampur, Chapra District, Thana Parsa, Bihar, presently residing at PWD Colony, Jairampur, PO and PS Jairampur, Changlang District, Arunachal Pradesh. VERSUS The State of AP and 6 Ors represented by its Commissioner and Secretary, Public Works Department, Itanagar, Papum Pare District, Arunachal Pradesh 791111 2:The Superintending Engineer Age: 0 Occupation : Jairampur Circle Public Works Department Jairampur PO Jairampur Changlang District Arunachal Pradesh 792120 3:The Executive Engineer Age: 0 Occupation : Jairampur Division Public Works Department Jairampur PO Jairampur Changlang District Arunachal Pradesh 792120 4:The Assistant Engineer Age: 0 Page No.# 2/9 Occupation : Nampong Sub Division Public Works Department Nampong PO Nampong Changlang District Arunachal Pradesh 792123 5:The Director of Audit and Pension Age: 0 Occupation : Govt of Arunachal Pradesh Naharlagun Arunachal Pradesh 791110 6:The Assistant Auditor Age: 0 Occupation : Directorate of Audit and Pension Govt of Arunachal Pradesh Naharlagun Arunachal Pradesh 791110 7:The Finance And Accounts Officer Age: 0 Occupation : Directorate of Audit and Pension Govt of Arunachal Pradesh Naharlagun Arunachal Pradesh 79111 Advocate for the Petitioner : Niranjan Sarma, Vijay Jamoh Advocate for the Respondent : GA (AP), BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER 26.03.2026 Heard Mr. N. Sarma, learned counsel for the petitioner and Mr. N. Lowang, learned Senior Government Advocate for the State respondents. Page No.# 3/9 2. In this petition, under Article 226 of the Constitution of India, the petitioner has challenged:- (i) the letter No. Pen/AP/38416/23-24/199/905-07, dated 04.07.2023, issued by the respondent No. 7 on behalf of the respondent No. 5, seeking clarification and re-fixation of his pay scale; (ii) the letter No. Pen/AP/38416/23-24/199/10258-260, dated 16.11.2023, issued by the respondent No. 7 on behalf of the respondent No. 5, seeking second time clarification and re-fixation of his pay scale; (iii) the Office Order No. JD/WC-13/2024-25/344-46, dated 08.07.2024, issued by the respondent No. 3 re-fixing his pay and allowances in accordance with the observation made in the letters dated 04.07.2023 and 16.11.2023, issued by the respondent No. 7 on behalf of the respondent No. 5; and (iv) the Order No. JD/PF-251(a)/2024-25/608-09, dated 16.08.2024, issued by the respondent No. 3, intimating his excess drawal, amounting Rs. 12,03,830/- and requiring him to deposit the same through Treasury Challan for settlement of the pension. 3. Mr. Sarma, learned counsel for the petitioner submits that the petitioner was appointed as Work Charged Assistant (WCA hereinafter) Mason, in the PWD Department, Jairampur Division, in the district of Changlang, Arunachal Pradesh, on 06.02.1987. Thereafter, he had superannuated on 31.10.2022, from the office of the respondent No. 4 and after his superannuation, his service book and other documents were submitted to the respondent No. 3, for taking necessary steps for settlement of his pension. Page No.# 4/9 3.1. Accordingly, the respondent No. 3 forwarded the pension papers and the service book of the petitioner to the respondent No. 5. But, the respondent No. 5 returned the same to the respondent No. 3, along with a letter dated 04.07.2023, stating discrepancies in the pay scale of the petitioner and sought for clarification in this regard from the respondent No. 3 and also requisitioned the relevant Recruitment Rules, so that the admissibility of the pay scale may be ascertained. 3.2. Thereafter, the respondent No. 3 resubmitted the pension papers and the service book of the petitioner to the respondent No. 5. But, the respondent No. 5 again returned the same, vide letter dated 16.11.2023, observing that the petitioner was appointed as WCA Mason at a higher pay scale of Rs. 950 – 1400/- (revised pay scale of Rs. 3050 – 4590/-) in contrast to the cases of some other persons appointed in the same post at the pay scale of Rs. 775 – 1025/- (revised pay scale of Rs. 2610 – 3540/-) and further observed that as per the OM dated 13.08.2007, the pay scale of the Assistant Mason is Rs. 2610 – 3540/- corresponding to the pre-revised scale of Rs. 775 – 1025/-. 3.3. In the said letter, dated 16.11.2023, also sought for a clarification for confirming the pay scale of the petitioner and the respondent No. 3, in response to the said letter, resubmitted the pension papers and the service book of the petitioner, vide letter dated 15.03.2024, stating that the petitioner was appointed as WCA Mason in the pay scale of Rs. 950 – 1400/- and in the same pay scale, the pension case of the same grade, as that of the petitioner, was finalized by the respondent No. 5. 3.4. Thereafter, the respondent No. 3 re-fixed the pay and allowances of the petitioner in terms of the observation pointed out by the respondent No. 5 in its letter dated 04.07.2023 and 16.11.2023, and further prepared the pay drawal Page No.# 5/9 statements of the petitioner w.e.f. 06.02.1987 up-to 31.10.2022. And as a result, the petitioner is found to have drawn an excess pay of Rs. 9,98,072/-. Thereafter, the respondent No. 3, vide its impugned order dated 16.08.2024, intimated the petitioner about the excess drawal amounting Rs. 12,03,830/-. 3.5. Being aggrieved with the impugned order dated 16.08.2024, by which excess drawal of pay and allowances and retiral benefits like gratuity, Leave Encashment, etc. are required to be deposited by the petitioner through Treasury Challan for settlement of his pension, the petitioner has approached this Court by filing the present petition. 3.6. Mr. Sarma further submits that in view of the decision of Hon’ble Supreme Court in the case of State of Punjab vs. Rafiq Masih (White Washer), reported in (2015) 4 SCC 334, recovery is not permissible in few situations, which are reflected in paragraph No. 18 of the said decision and those situations are:- (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 Page No.# 6/9 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. 3.7. Mr. Sarma has also referred to a decision of Hon’ble Supreme Court in the case of Thomas Deniel vs. State of Kerala and Others, reported in 2022 SCC Online SC 536, especially paragraph No. 9, wherein it is stated as under:- “9. This Court in a catena of decisions has consistently held that if the excess amount was not paid on account of any misrepresentation or fraud of the employee or which is subsequently found to be erroneous, such excess payment of emoluments or allowances are not recoverable. This relief against the recovery is granted not because of any right of the employees but in equity, exercising judicial discretion to provide relief to the employees from the hardship that will be caused if the recovery is ordered. This Court has further held that if in a given case, it is proved that an employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, the courts may on the facts and circumstances of any particular case order for recovery of amount paid in excess,” to contend that the petitioner herein was a Group – ‘D’ employee and he has no role in fixation of his pay nor he has misrepresented himself to get undue benefit and on such count, the recovery, that too, after almost two years of retirement is impermissible. 3.8. Referring to the affidavit-in-opposition filed by the respondent authorities, Mr. Sarma submits that the respondent authorities have admitted that the excess drawal is due to incorrect and wrong fixation of pay scale of the Page No.# 7/9 petitioner and due to erroneous grant of increment by the respondent authorities and in that view of the matter, the impugned orders may be set aside and quashed and respondents may be directed not to recover the excess drawal, which is not on account of fraud or misrepresentation on the part of the petitioner and to settle the pension of the petitioner in a time bound manner. 4. Per-contra, Mr. Lowang, learned Senior Government Advocate for the State respondents, referring to the affidavit-in-opposition filed by the respondent Nos. 2, 3 & 4 and also respondent No. 5, 6 & 7, submits that there was excess drawal amounting Rs. 12,03,830/-, under different heads and as such, the impugned orders were passed by the respondent authorities and there is no illegality or infirmity in the same and therefore, the same requires no interference of this Court. 4.1. However, to a pointed query of this Court, as to whether the case of the petitioner is covered by the decision of Hon’ble Supreme Court in the cases of Rafiq Masih (supra) and Thomas Daniel (supra), Mr. Lowang fairly submits that the case of the petitioner covers by the aforesaid decisions. 5. Having heard the submissions of learned counsel for both the parties, this Court has carefully gone through the petition as well as the documents placed on record and also gone through the decision of Hon’ble Supreme Court in the cases of Rafiq Masih (supra) and Thomas Daniel (supra). 6. The basic facts of this case are not in dispute. The petitioner was appointed as WCA Mason in the PWD Department, Jairampur Division, in the district of Changlang, Arunachal Pradesh, on 06.02.1987. Thereafter, he had superannuated on 31.10.2022 and then, the respondent No. 4 has submitted the service book along with pension papers of the petitioner to the respondent Page No.# 8/9 No. 3. But, the same was returned on two occasions, vide letter dated 04.07.2023 and 16.11.2023, on account of discrepancies being noticed in respect of his pay scale. Subsequently, when the respondent No. 4 resubmitted the pension papers along with the service book of the petitioner, then vide impugned order dated 16.08.2024, it was directed to recover excess drawal amounting Rs. 12,03,830/- from the petitioner by the respondent No. 3. 7. It is to be noted here that since the petitioner’s post belongs to Group – ‘D’ category and since the petitioner retired on superannuation on 31.10.2022 and excess drawal was discovered only in the year 2024, the case of the petitioner is coverd by the situation mentioned in the Clause Nos. (i) & (ii) of the decision of Hon’ble Supreme Court in the case of Rafiq Masih (supra). 8. Further, the respondent authorities in their affidavit-in-opposition have admitted the excess drawal is on account of incorrect and wrong fixation of pay and erroneous grant of increment. Indisputably, being an employee of Group – ‘D’ category, the petitioner has no role in fixation of pay and allowances and in granting increment. There is nothing in the affidavit-in-opposition filed by the respondent authorities to show any misrepresentation or fraud on the part of the petitioner in excess drawal. In that view of the matter, the case of the petitioner is squarely covered by the decision of Hon’ble Supreme Court in the case of Thomas Daniel (supra). 9. In view of the given factual and legal position as discussed herein above, this Court is of the view that the impugned order dated 16.08.2024, failed to withstand the legal scrutiny and accordingly, the same stand set aside and quashed. 10. By a mandamus of this Court, the respondent authorities, more particularly Page No.# 9/9 respondent Nos. 3, 4 & 5, are directed to settle the pension papers and service book of the petitioner, within a period of 3 (three) months from the date of receipt of the certified copy of this order. 11. The petitioner shall obtain a certified copy of this order and place the same before the respondent authorities, more particularly respondent No. 3, within a period of one week from today. 12. It is further provided that in the event of failing to settle the pension papers and the service book of the petitioner, within the stipulated time, then the pension and pensionary benefit including the arrear amount of the petitioner shall carry interest @ 9% per annum from the date of its due, till realization. 13. In terms of above, this writ petition stands disposed of. JUDGE Comparing Assistant