Page No.# 1/5 GAHC010246362024 2025:GAU-AS:16253 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/6535/2024 SAHERA BANU W/O- ABDUL JALIL CHAUDHURY, VILL.- MIAH PARA, MANKACHAR, P.O.- MANKACHAR, P.S. MANKACHAR, DIST- S-MANKACHAR (ASSAM), PIN- 783131 VERSUS THE STATE OF ASSAM AND 6 ORS REPRESENTED BY PRINCIPAL COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM (EDUCATION DEPARTMENT) GUWAHATI-06 2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM PENSION AND PUBLIC GRIEVANCES DEPARTMENT GUWAHATI-06 3:THE DIRECTOR OF PENSION ASSAM HOUSEFED COMPLEX GUWAHATI-06 4:DIRECTORATE OF ACCOUNT AND TREASURERS ASSAM DISPUR GUWAHATI-06 5:ACCOUNTANT GENERAL MAIDAM GAON KRISHNAPUR BELTOLA TINIALI GUWAHATI- 781029 6:BLOCK ELEMENTARY EDUCATION OFFICER MANKANCAHAR DISTRICT- SOUTH SALMARA PIN- 783131 Page No.# 2/5 7:DEPUTY INSPECTOR OF SCHOOL SOUTH SALMARA MANKACHAR HATSINGIMARI PIN- 78313 Advocate for the Petitioner : MR MINTU SAIKIA, MS R DUTTA Advocate for the Respondent : GA, ASSAM, SC, ELEM. EDU,SC, AG (A AND E) BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA ORDER Date : 28.11.2025 Heard Mr. M. Saikia, learned counsel for the petitioner. Also heard Mr. N. J. Khataniar, learned Standing Counsel for the Elementary Education Department and Mr. A. Chakrabarty, learned counsel appearing on behalf of Mr. B. Sarma, learned counsel for the Accountant General office. 2. The petitioner is aggrieved with the letter dated 04.07.2024, issued by the Deputy Inspector of Schools, South Salmara, Mankachar, Hatsingimari, informing the petitioner that after proper verification of pay fixation and other relevant records in the Service Book by the Director of Pension, Assam, it was found that there was an excess drawal of salary w.e.f. 01.01.1996 to 31.01.2024, inasmuch as, the pay of the petitioner as on 01.10.1989 should have been fixed @ Rs.3310/-, instead of Rs.3370/-. 3. The learned counsel for the petitioner submits that pursuant to the above impugned letter dated 04.07.2024, an assessment has been made by the respondents, due to which the State respondents are now attempting to recover an amount of Rs.2,46,959/- from the petitioner, due to the wrong fixation of pay made by the respondents. Page No.# 3/5 4. The learned counsel for the petitioner submits that the petitioner, who was initially appointed as an Assistant Teacher of Pubargaon L.P. School against the scale of pay @ Rs.470/- per month on temporary basis, retired as Head Master of 1177 No. Rastravasha Vidyamandir L.P.School, South Salmara, Mankachar, Hatsingimari, which is a Grade-III post. Accordingly, in terms of the judgment of the Hon’ble Supreme Court in the case of State of Punjab v. Rafiq Masih, reported in (2015) 4 SCC 334, recovery of excess pay, which has not been made due to any fraud or false representation on the part of the employee, cannot be allowed to be recovered from an employee holding a Grade-III and Grade-IV post. 5. Mr. N. J. Khataniar, learned Standing Counsel for the Elementary Education Department, fairly admits that in terms of Rafiq Masih (supra), it may not be lawful to recover the excess pay made to the petitioner, who held a Grade-III post, when the fixation of pay has been wrongly made on 01.10.1989 and excess drawal has been made w.e.f. 01.01.1996 to 31.01.2024. 6. Mr. A. Chakrabarty, learned counsel appearing on behalf of Mr. B. Sarma, learned counsel for the Accountant General office, submits that he has no comments to make in this case. 7. A perusal of the various judgments of the Supreme Court, some of them being Syed Abdul Qadir & Others vs. State of Bihar & Others, reported (2009) 3 SCC 475, Shyam Babu Verma & Others vs. Union of India & Others, reported in (1994) 2 SCC 521 and State of Punjab and others Vs. Rafiq Masih (White Washer), reported in (2015) 4 SCC 334 etc., would go to show that relief against recovery of excess payment of salary and Page No.# 4/5 allowances can be granted, if the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee and if such excess payment was made by the employer, by applying a wrong principle or mistake for calculating the pay and allowances. Further, recovery of excess payment should not be made against Class-III & Class-IV Grade of employee. However, as held in the case of Syed Abdul Qadir (supra), recovery of excess pay is allowed by the Courts, if it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid and the employee had knowledge that he was being paid more than what he was entitled to. 8. The impugned letter dated 04.07.2024 states as follows:- “To: Smt Sahera Banu, Rtd. H/T, 1177 No. Rastravasha Vidyamandir LP School. Subject: Notice regarding excess drawal of salary w.e.f. 01/01/1996 to 31/01/2024. Ref: Pensioner id-75010 With reference to the subject cited above, I have the honour to inform you that after proper verification of your Pay Fixations and other relevant records in the Service Book by the Director of Pension, Assam it is found that there are excess drawal of salary w.e.f. 01/01/1996 to 31/01/3024. The pay on 01/10/1989 should be fixed at Rs. 3310/instead of Rs. 3370/-. In this regard, The Pay Fixation Sheet has been enclosed herewith for verification from your end. The delay in recover the excess drawal amount will lead to delay in finalization of your pension. Therefore you are requested to appear before the undersigned immediately and discuss the method to recover the amount after proper calculation within 7 (Seven) days soon after the letter received.” 9. A perusal of the above shows that the State respondents have wrongly fixed the pay of the petitioner on 01.01.1989 @ Rs. 3370, instead of 3310. The Page No.# 5/5 excess salary had been paid to the petitioner from 01.01.1996 till her retirement. There is nothing to show that the writ petitioner had made any misrepresentation or played a fraud in the wrong fixation of pay made by the State respondents on 01.10.1989 or in the drawal of the excess salary. It cannot be said after more than 30 years have elapsed, that the petitioner had the knowledge that she had been getting pay in excess of what she was entitled to. 10. The above being said, the petitioner also belongs to a Grade-III post. 11. In view of the judgment of the Supreme Court, as enumerated above, this Court cannot allow the recovery of the excess salary paid to the petitioner at this late stage, due to wrong fixation of pay made by the respondents. Accordingly, the impugned letter dated 04.07.2024, issued by the Deputy Inspector of Schools, South Salmara, Mankachar, Hatsingimari and any other consequential assessment or communications made for recovery of the excess salary paid to the petitioner, is hereby set aside. 12. The writ petition is accordingly disposed of. JUDGE Comparing Assistant