Page No.# 1/4 GAHC010066782024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/1844/2024 NAZIM UDDIN LASKAR S/O LATE MUBIJ ALI LASKAR, R/O VILL- BURIBAIL PART-I, P.O.- GANIRGRAM, PIN-788025, DIST-CACHAR, ASSAM VERSUS THE STATE OF ASSAM AND 7 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, PUBLIC WORKS ROADS DEPARTMENT, DISPUR, GUWAHATI-6 2:UNDER SECRETARY TO THE GOVT. OF ASSAM PUBLIC WORKS ROADS (AUDIT BRANCH) DEPARTMENT DISPUR GUWAHATI-6 3:THE CHIEF ENGINEER PUBLIC WORKS (ROADS) DEPARTMENT CHANDMARI GUWAHATI-3 4:THE EXECUTIVE ENGINEER PWD BORKHOLA AND KATIGORAH TERRITORIAL ROAD DIVISION KATIGORAH CACHAR-788804 5:THE ACCOUNTANT GENERAL (A AND E) MAIDAMGAON BELTOLA GUWAHATI-29 6:THE SENIOR ACCOUNTS OFFICER Page No.# 2/4 OFFICE OF THE ACCOUNTANT GENERAL (A AND E) MAIDAMGAON BELTOLA GUWAHATI-29 7:THE DIRECTOR OF PENSION ASSAM HOUSEFED COMPLEX LAST GATE DISPUR GUWAHATI-6 8:THE ASSISTANT ACCOUNTS OFFICER OFFICE OF THE ACCOUNTANT GENERAL (A AND E) MAIDAMGAON BELTOLA GUWAHATI-2 Advocate for the Petitioner : MR. A D CHOUDHURY, Advocate for the Respondent : SC, PWD, SC, AG,GA, ASSAM BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM ORDER Date : 05/03/2025 Heard Mr. A.D. Choudhury, learned counsel for the writ petitioner. Also heard Mr. P. Nayak, learned Standing Counsel, PWD, Assam, appearing for the respondent nos. 1 to 4; Mr. B. Chakravarty, learned Standing Counsel, Office of the AG(A&E), Assam, appearing for the respondent nos. 5, 6 & 8 and Mr. T.C. Chutia, learned Additional Senior Government Advocate, Assam, appearing for the respondent no. 7. The writ petitioner has retired from service in the post of Section Assistant in the office of the Executive Engineer, PWD, Borkhola-Katigorah Territorial Road Division, Cachar, on 31/01/2021, upon attaining the age of superannuation. As per the Rules, the petitioner is entitled to draw pension. As such, the authorities had also Page No.# 3/4 sanctioned his pension. However, the petitioner is aggrieved due to the recovery of an amount of Rs. 92,396/- from his pensionary dues on the ground of excess drawl due to wrong fixation of pay. According to the authorities, while allowing the benefit of increment to the petitioner with effect from 01/07/2015, his pay was wrongly fixed at Rs. 12,140/- in place of Rs. 11,730/-, as a result of which, there is over drawl by the writ petitioner. The writ petitioner has, however, contended that over-drawal, if any, is not as a result of any act of omission or commission or fraud or misrepresentation on his part. As such, being a retired person, such recovery from his pensionary dues after retirement, is impermissible under the law as well as under the OM dated 14/06/2019 issued by the Government of Assam, Finance Department. In order to drive home the above point, Mr. Choudhury, learned counsel for the petitioner has invited the attention of this Court to clause 4(iii) of the OM No. Fin(EC-III).1808/2018/2 dated 14th June, 2019, to submit that recovery of excess payment made to an employee in excess of 5 (five) years period would be impermissible under the law. He submits that in the present case, the pay of the petitioner was revised on 01/07/2015 and he has been allowed to draw the revised pay with effect from 01/07/2015 until his retirement from service on 31/01/2021. As such, the period involved in this case is clearly in excess of 5 (five) years, thus, restricting recovery of the excess drawl from the petitioner. By referring to the decision of the Hon’ble Supreme Court rendered in the case of State of Punjab and others Vs. Rafiq Masih reported in (2015) 4 SCC 334, Mr. Choudhury further submits that the Supreme Court has clearly laid down the law in this regard prohibiting recovery of such amount from retired Government servants, particularly, those in the Grade –III and Grade-IV category. Responding to the above, Mr. P. Nayak, learned Standing Counsel, PWD, has submitted in his usual fairness that in view of Clause-4(III) of the notification dated 14/06/2019, the recovery of the Page No.# 4/4 excess amount from the writ petitioner was clearly impermissible. Therefore, he would have no objection if the writ petition is allowed by taking note of the aforesaid OM. Mr.B. Chakravarty, learned Standing Counsel, office of the AG (A&E), Assam and Mr. T.C. Chutia, learned Additional Senior Government Advocate, Assam, are present and do not have any further submission to make in this matter. In view of the above, this writ petition must succeed. The order of recovery of the amount of Rs. 92,396/- made from the petitioner is hereby set aside. The respondents are directed to refund the amount to the petitioner’s account within 60 (sixty) days from today, failing which, interest @ 12% per annum on the said amount from the date of furnishing a certified copy of this order, till realization, would be attracted. With the above direction and observation, the writ petition stands disposed of on the above amount. There shall be no order as to costs. JUDGE Comparing Assistant