Page No.# 1/6 GAHC010183032025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/4907/2025 KANBAR DAS S/O- LATE METAKA DAS , VILL- HUJ GAON, P.O- DHAKUAKHANA, DIST- LAKHIMPUR, ASSAM,PIN-787055 VERSUS THE STATE OF ASSAM AND OTHRS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, DEPARTMENT OF SECONDARY EDUCATION, DISPUR, GUWAHATI-781006 2:THE DIRECTOR OF SECONDARY EDUCATION ASSAM KAHILIPARA GUWAHATI-19 3:THE INSPECTOR OF SCHOOLS LAKHIMPUR DISTRICT CIRCLE LAKHIMPUR ASSAM PIN-787001 4:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM DEPARTMENT OF FINANCE DISPUR GUWAHATI-781006 5:THE TREASURY OFFICER DHAKUAKHANA SUB- TREASURY DIST- LAKHIMPUR Page No.# 2/6 ASSAM 6:THE DIRECTOR OF PENSION ASSAM DISPUR GUWAHATI-06 7:THE FINANCE AND ACCOUNTS OFFICER DIRECTORATE OF PENSION ASSAM DISPUR GUWAHATI-06 8:THE HEAD MASTER PUB DHAKUAKHANA JANJATI HIGH SCHOOL DHAKUAKHANA DIST- LAKHIMPUR ASSA Advocate for the Petitioner : MR. M S ALAM, MS. A BEGUM,MR. S. ALOM Advocate for the Respondent : SC, SEC. EDU., SC, FINANCE,GA, ASSAM BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER Date : 10.12.2025 Heard Mr. S. Alom, learned counsel for the petitioner. Also heard Ms. P. Das, learned standing counsel for the respondent Nos. 1, 2 and 3; Ms. R.M. Barooah, learned standing counsel for the respondent Nos. 4 and 5; and Mr. G. Pegu, learned Addl. Senior Government Advocate for the respondent Nos. 6 and 7. 2. In this petition, under Article 226 of the Constitution of India, the petitioner has challenged the order dated 16.05.2025 (Annexure – 3), issued by the Finance and Accounts Officer, Directorate of Pension, Assam directing the Treasury Officer, Dhakuakhana to recover the excess payment of Rs. 1,16,666/- against the head of provisional DCRG and Rs. 93,216/- against the head of Page No.# 3/6 provisional pension from the petitioner. Further, the petitioner has prayed for issuing direction to the respondent authorities to waive the said excess payment of Rs. 1,16,666/- against the head of provisional DCRG and Rs. 93,216/- against the head of provisional pension, which was received by the petitioner due to wrong fixation of his scale of pay on 01.01.1996. 3. Mr. Alom, learned counsel for the petitioner submits that the petitioner had retired from service as Assistant Teacher of Pub-Dhakuakhana Janajati High School, on 28.02.2018. Mr. Alom further submits that after his retirement, he had received provisional pension and some portion of the DCRG. But, his pension was finalized vide order dated 16.05.2025 (Annexure – 3) and vide said order, the respondent authorities have initiated the process for recovery of excess payment of Rs. 1,16,666/- against the head of provisional DCRG and Rs. 93,216/- against the head of provisional pension from the petitioner. Mr. Alom further submits that in view of the Office Memorandum of the Finance Department, dated 14.06.2019, bearing No. Fin(EC-III).1808/2018/2 and also in view of the decision of Hon’ble Supreme Court in the case of State of Punjab and Others vs. Rafiq Masih (White Washer), reported in (2015) 4 SCC 334, the respondent authorities are not entitled to recover the excess drawal amount as the same was not on account of fault of the petitioner. Under such circumstances, Mr. Alom has contended to issue direction to the respondent authorities to waive the excess drawal amount. 4. Ms. Das, learned standing counsel for the respondent Nos. 1, 2 and 3 submits that she may be granted some time to obtain instruction. But, it appears that earlier on two occasions, adjournments were granted to Ms. Das to obtain necessary instruction, and she has failed to obtain the same, instead she has again prayed for granting some time. Her prayer stands rejected. Page No.# 4/6 5. Mr. Pegu, learned Addl. Senior Government Advocate for the respondent Nos. 6 and 7 submits that the instruction as asked for, vide order dated 27.08.2025, is not available. However, on 27.08.2025, Mr. B. Deuri, learned Government Advocate for the respondent Nos. 6 and 7 had apprised this Court that one Office Memorandum has already been issued by the Government prohibiting recovery of excess drawal amount under certain circumstances mentioned therein. 6. Having heard the submissions of learned counsel for the both the parties, I have carefully gone through the petition and the documents placed on record. 7. It is not in dispute that the petitioner was serving as Assistant Teacher of Pub Dhakuakhana Janajati High School and he retired on 28.02.2018, and though his pension was finalized, vide order dated 16.05.2025, the respondent authorities have initiated the process of recovery of excess payment of Rs. 1,16,666/- against the head of provisional DCRG and Rs. 93,216/- against the head of provisional pension from the petitioner, and as such, the total amount so recoverable would be Rs. 2,09,882/-. 8. It is to be noted here that in the case of Rafiq Masih (White Washer) (supra), at paragraph 18, Hon’ble Supreme Court, has held as under: “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 III and Page No.# 5/6 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.” 9. After the aforesaid decision of the Hon’ble Supreme Court, the Principal Secretary to the Government of Assam, Finance Department had issued an Office Memorandum, bearing No. Fin (EC-III).1808/2018/2, dated 14.06.2019, incorporating the five situations, indicated in the case of Rafiq Masih (White Washer) (supra) in para 18, under which recovery is impermissible in law. 10. In the instant case, the recoverable amount is Rs. 2,09,882/-, and as the petitioner was serving as Assistant Teacher of a high school, he has no role to play in wrong fixation of his pay and that he also belongs to Class-III service and he has already retired from service in the year 2018, and since then more than seven years elapsed, and in that view of the matter, if recovery is made from the petitioner after such a long period and in absence of his any role in overdrawal and absence of any fraud or misrepresentation on his part, it would be iniquitous or harsh or arbitrary to a great extent, as would far outweigh the Page No.# 6/6 equitable balance of the State respondents’ right to recover. 11. Thus, in view of the decision in Rafiq Masih (White Washer) (supra), and also in view of the Office Memorandum dated 14.06.2019, there is no question of recovery of excess amount thereby, withholding the pension and pensionary benefits of the petitioner. 12. Under the given factual and legal matrix, this Court is inclined to dispose of this petition by directing the respondent authorities, more particularly the respondent Nos. 2 and 6, to settle and release the pension and pensionary benefits of the petitioner, within a period of six weeks from the date of receipt of certified copy of this order. And in the event of failing to settle the claim of the petitioner within the aforesaid period, the amount to be received by the petitioner, shall carry an interest @ 9% per annum till the date of recovery and the same shall be recoverable from the salaries of the respondent Nos. 2 and 6, as in spite of existence of the Office Memorandum dated 14.06.2019 and the direction of Hon’ble Supreme Court, they have failed to settle the claim of the petitioner, who had superannuated long back i.e. on 28.02.2018. 13. The petitioner shall obtain a certified copy of this order and place the same before the respondent authorities within a period of two weeks from today. 14. In terms of above, this writ petition stands disposed of. 15. Interim order passed earlier stands vacated. JUDGE Comparing Assistant