Page No.# 1/7 GAHC040019902025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH) Case No. : WP(C)/568/2025 Hogduk Ete Son of Late Besok Ete, Pobdi Village, PO and PS Aalo, West Siang District, Arunachal Pradesh. VERSUS The State of AP and 3 Ors represented by the Commissioner/ Secretary (PHE and WS), Govt of Arunachal Pradesh, Itanagar. 2:The Secretary Age: 0 Occupation : Finance Planning and Investment Department Arunachal Pradesh Civil Secretariat Itanagar. 3:The Chief Engineer (W/Z) Age: 0 Occupation : Public Health Engineering and Water Supply Department Itanagar. 4:The Director of Audit and Pension Age: 0 Occupation : Govt of Arunachal Pradesh Naharlagun Advocate for the Petitioner : T T Tara, Sr. Adv, Pondit Ronya,Kirmani Lollen,Y Mugli,Terji Kamchi,Taba Tokur,Khoda Apa,Gamken Bam Advocate for the Respondent : GA (AP), Page No.# 2/7 BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI ORDER Date : 02.09.2026 The challenge in this writ petition under Article 226 of the Constitution of India is against the order dated 16.09.2025 (issued on 08.10.2025), by which, there is a direction for recovery of pay from the petitioner for the period 01.04.2003 to 25.07.2013 and such recovery is on excess payment made to the petitioner. 2. As per the facts projected, the petitioner was holding the post of Executive Engineer, to which, he was promoted in the year 2001 in the PHE & WS Department. He was to retire on 30.04.2026. However, vide aforesaid impugned order dated 16.09.2025, recovery of excess pay has been directed. 3. I have heard Shri G. Bam, learned counsel for the petitioner. I have also heard Ms R. Basar, learned State counsel representing the official respondents. 4. Shri Bam, learned counsel for the petitioner has submitted that the impugned action is unsustainable in law and is in the teeth of the principles laid down on the subject by the Hon’ble Supreme Court in the catena of decisions, including the case of the State of Punjab and Others Vs. Rafiq Masih (White Washer) and Others reported in (2015) 4 SCC 334. He has submitted that the recovery has been sought Page No.# 3/7 to be done at the verge of retirement from the service of the petitioner and there is no allegations of any fraud or misrepresentation which has resulted in the payment in question. It is also submitted that the Hon’ble Supreme Court, in the aforesaid case of Rafiq Masih (Supra) has laid down certain guidelines and in the instant case, the principles laid down under point No.2 and 3 would squarely cover the case of the petitioner. The learned counsel for the petitioner has also submitted that in the subsequent cases, the Hon’ble Supreme Court has reiterated the principles laid down in the aforesaid case of Rafiq Masih (supra). In this connection, he has drawn the attention of this Court to the case of Jogeswar Sahoo and Others Vs. District Judge, Cuttack and Others reported in 2025 SCC Online SC 724 and the following observations have been pressed into service, which is extracted herein below:- “11. In the case at hand, the appellants were working on the post of Stenographers when the subject illegal payment was made to them. It is not reflected in the record that such payment was made to the appellants on account of any fraud or misrepresentation by them. It seems, when the financial benefit was extended to the appellants by the District Judge, Cuttack, the same was subsequently not approved by the High Court which resulted in the subsequent order of recovery. It is also not in dispute that the payment was made in the year 2017 whereas the recovery was directed in the year 2023. However, in the meanwhile, the appellants have retired in the year 2020. It is also an admitted position that the appellants were not afforded any opportunity of hearing before issuing the order of recovery. The appellants having superannuated on a ministerial post of Stenographer were admittedly not holding any Page No.# 4/7 gazetted post as such applying the principle enunciated by this Court in the above quoted judgment, the recovery is found unsustainable.” He has also submitted that in a judgment rendered by the coordinate Bench of this Court in WP(C) No. 386(AP)/2024 dated 16.06.2025 (Tamuli Takoh Vs. The State of A. P and Other), all the aforesaid factors were considered and the facts were almost identical wherein this Court has interfered with such impugned action. He has also relied upon the case of Joi Angu Vs State of A.P and Others in WP(C) No. 567(AP)/2025 (Judgment dated 12.08.2026). 5. Per contra, Ms Basar, learned State counsel has submitted that the excess pay is on the account of increment which an employee earns by being successful in a departmental examination. By drawing the attention of this Court to the affidavit-in-opposition, filed on 10.03.2026, the learned State counsel has submitted that the petitioner did not sit in such departmental examination and therefore, he was aware that payment of the increment was not authorised and should have informed the same to the employer. The learned State counsel has however, submitted that there is nothing on record to suggest fraud or misrepresentation on the part of the petitioner. 6. In his reply, Shri Bam, learned counsel for the petitioner has clarified that the departmental examination is for Junior Engineers and Assistant Engineers and not for Executive Engineers. He has reiterated that there being no allegations of fraud or misrepresentation against his client, the impugned action is unsustainable in law. Page No.# 5/7 7. The rival contentions have been duly considered and the materials placed before this Court have been carefully examined. 8. While there is a dispute with regard to the entitlement to the increment qua the requirement of sitting in the departmental examination, what transpires is that the recovery has been sought to be made at the verge of the retirement of the petitioner. In this connection, the principles laid down by the Hon’ble Supreme Court in the case of Rafiq Masih (supra) are required to be taken into consideration, which reads as follows:- ”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 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. Page No.# 6/7 (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.” As rightly pointed out by the learned counsel for the petitioner, the facts and situation of the instant case would be squarely covered by the principles laid down in point Nos.(ii) and (iii). In the instant case, the petitioner was to retire in April, 2026 and the impugned order of recovery was issued on 16.09.2025, which is not only within 1(one) year of the date of retirement, rather on the verge of retirement. As mentioned above, there is no allegations of fraud or misrepresentation on the part of the petitioner, for which, the excess payment has been made. 9. The coordinate Bench of this Court in the aforesaid case of Tamuli Takoh has extensively dealt with the submission advanced on behalf of the State, opposing the case of the petitioner in that case. This Court is in humble agreement with the findings of the coordinate Bench and is of the opinion that point Nos.(ii) and (iii) of the principles laid down in Rafiq Masih by the Hon’ble Supreme Court would cover the case of the petitioner. It is also seen that the recovery has been sought to be made in the year 2025, which is for the period 01.04.2003 to 25.07.2013 and such recovery is after expiry of more than 5(five) years as laid done by the Hon’ble Supreme Court. 10. In view of the above, this Court is of the opinion that a case of interference is made out. The impugned recovery order dated 16.09.2025 Page No.# 7/7 issued by the Chief Engineer (WZ), PHE & WS Department is accordingly, set aside. The writ petition stands allowed. The interim order is made absolute. JUDGE Comparing Assistant Digitally signed by TAGE BUNYI Date: 2026.09.02 17:38:10 +05'30'