Page No.# 1/4 GAHC010012762025 2025:GAU-AS:2433 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/531/2025 SMTI KABITA GOHAIN W/O LATE NABIN BORAH, VILLAGE KHAJUAGAON,, POST OFFICE JALBHARI, DISTRICT LAKHIMPUR, ASSAM, PIN 787055 VERSUS THE STATE OF ASSAM AND 7 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM, SCHOOL EDUCATION ( ELEMENTARY) DEPARTMENT, DISPUR GUWAHATI-6 2:THE DIRECTOR OF ELEMENTARY EDUCATION ASSAM KAHILIPARA GUWAHATI-19 3:THE DISTRICT ELEMENTARY EDUCATION OFFICER LAKHIMPUR DISTRICT- LAKHIMPUR ASSAM PIN- 787001 4:THE DEPUTY INSPECTOR OF SCHOOLS DHAKUAKHANA DISTRICT- LAKHIMPUR ASSAM PIN- 787055 5:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM FINANCE DEPARTMENT DISPUR GUWAHATI-6 6:THE TREASURY OFFICER DHAKUAKHANA SUB-TREASURY DIST.- LAKHIMPUR ASSAM PIN- 787055 Page No.# 2/4 7:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM PENSION AND PUBLIC GRIEVANCES DEPARTMENT DISPUR GUWAHATI-6 8:THE DIRECTOR OF PENSION ASSAM DISPUR GUWAHATI-0 Advocate for the Petitioner : MD. S ALOM, MR. M S ALAM,MS. A BEGUM Advocate for the Respondent : GA, ASSAM, SC, FINANCE,SC, ELEM. EDU BEFORE HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY ORDER 07.03.2025 Heard Mr. S. Alam, learned counsel for the petitioner. Also heard Mr. N. J. Khataniar, learned standing counsel for the Elementary Education Department representing the respondents. 2. The petitioner was working as an Assistant Teacher of Kalakata Gosaibari L.P. School, in the district of Lakhimpur and retired from service on 31.03.2023, It is her case that though after retirement, her employer i.e., the District Elementary Education Officer, forwarded all necessary documents along with the service book of the petitioner for the payment of her pensionary benefit along with other benefit, however, the Director of Pension put an objection that there are some excess drawl by the petitioner and accordingly, the pension has not yet been released. 3. Mr. Alam, learned counsel for the petitioner referring to a letter dated 17.12.2024 issued by the Deputy Inspector of School, Dhakuakhana, Lakhimpur, contends that the said Officer has asked the petitioner to refund excess amount drawn Page No.# 3/4 by the petitioner amounting to Rs. 1,69,125/- (Rupees One Lakh Sixty Nine Thousand One Hundred and Twenty Five) only. It was further directed to refund the aforesaid amount through treasury challan in one instalment at the earliest possible. As the petitioner could not deposit such amount being low paid employee and pensioner, the respondents are not releasing the pension of the petitioner. 4. In this regard, Mr. Alam, learned counsel for the petitioner referring to the judgment of the Hon’ble Apex Court in the case of the State of Punjab & Ors., vs. Rafiq Masih (Whitewasher) submits that the petitioner being a low paid employee cannot be burdened with the recovery inasmuch as the excess payment was made by the employer by mis-calculating his scale of pay. 5. Per contra, referring to the details of excess drawl (Annexure-1), the learned counsel for the State submits that due to wrong fixation of scale of pay, the petitioner was paid excess amount with effect from 01.01.2011 to 21.03.2023. 6. Admittedly, from the communication dated 17.12.2024, issued by the Deputy Inspector of School addressed to the Treasury Officer, it is clear that the excess drawl was due to wrong fixation of scale of pay at Rs. 12,320/- instead of Rs. 12,170/- with effect from 01.01.2011. The petitioner was an Assistant Teacher and she had no role in the fixation of her scale of pay. 7. Thus, it is clear that the reason of recovery is relatable to an excess payment made to the petitioner by her employer, while mistakenly calculating her scale of pay as determined on 01.01.2011. There is no allegation of any fraud or mis-appropriation or manipulation on the part of the petitioner. It is candidly admitted by the State respondent that the mistake was on their part in calculating the scale of pay and accordingly, the excess payment was made to the petitioner. Page No.# 4/4 8. In Rafiq Masih (Supra), the principle of law that when a low-ranked employee is paid a scale of pay to which the employee is not entitled to, however, by wrong/miss- calculation such payments were made for no fault of such pensioner, the said amount shall not be recovered by the employer was approved. In the case in hand, this Court also cannot ignore the service status of the petitioner who was Assistant Teacher and also cannot ignore that there is no whisper by the employer that it was the petitioner who manipulated or mis-presented in granting her higher scale of pay, rather, as recorded herein above, it is an admitted position that excess payment made was due to wrong calculation. 9. In the aforesaid view of the matter, considering the law laid down in this regard by the Hon’ble Apex Court in the case of Rafiq Masih (supra), the present writ petition stands allowed by setting aside and quashing the impugned decision to recover an amount of Rs. 1,69,125/- (Rupees One Lakh Sixty Nine Thousand One Hundred and Twenty Five) only from the pension of the pensioner. Accordingly, the Deputy Inspector of School, Dhakuakhana, Lakhimpur, i.e., the respondent No. 4. as well as the Director of Pension i.e., the respondent No. 8 are directed to proceed with the pension proposal of the petitioner without insisting any recovery on account of excess drawal. The regular pension to be paid to the petitioner within a period of 3(three) months from the receipt of a certified copy of this order to be furnished by the petitioner to the respondent Nos. 4 and 8. The writ petition stands disposed of. Parties to bear their own cost(s). JUDGE Comparing Assistant