Page No.# 1/25 GAHC010058122024 2026:GAU-AS:10269 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/1678/2024 BALEN BARO S/O- LATE BANO BARO, R/O- VILL.- KUCHIZAR, P.O. BHAWANIPUR, P.S. AND DIST. BARPETA, ASSAM, PIN- 784352. VERSUS THE STATE OF ASSAM AND 5 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, PWD (R) DEPARTMENT, DISPUR, GUWAHATI-781006. 2:THE ACCOUNTANT GENERAL (A AND E) ASSAM MAIDAMGAON BELTOLA GUWAHATI-781036. 3:THE CHIEF ENGINEER PWD (RR) DEPARTMENT CHANDMARI GUWAHATI-3. 4:THE TREASURY OFFICER BARPETA DIST. BARPETA ASSAM 5:EXECUTIVE ENGINEER PWD (RR) BARPETA DIVISION DIST. BARPETA Page No.# 2/25 ASSAM 6:ASSTT. EXECUTIVE ENGINEER PWD PATACHARKUCHI TERRITORIAL ROAD SUB- DIVISION PATHSALA BARPETA Advocate for the Petitioner : MR H DAS, MR. B C DEKA,D BARUAH Advocate for the Respondent : SC, PWD ROAD, SC, FINANCE,SC, AG Linked Case : WP(C)/6384/2025 BALEN BARO S/O LATE BANO BARO R/O VILLAGE- KUCHIZAR P.O.- BHAWANIPUR P.S.- BARPETA DISTRICT- BARPETA ASSAM PIN- 784352 VERSUS THE STATE OF ASSAM AND 5 ORS. REPRESENTED BY THE COMMISSIONER SECRETARY TO THE GOVERNMENT OF ASSAM PWD (R) DEPARTMENT DISPUR GUWAHATI- 781006. 2:THE ACCOUNTANT GENERAL (A AND E) ASSAM MAIDAMGAON BELTOLA GUWAHATI- 781036. 3:THE CHIEF ENGINEER PWD (RR) DEPARTMENT CHANDMARI Page No.# 3/25 GUWAHATI-3. 4:THE TREASURY OFFICER BARPETA DISTRICT- BARPETA ASSAM. 5:EXECUTIVE ENGINEER PWRD (RR) BARPETA DIVISION DISTRICT- BARPETA ASSAM 6:ASSTT EXECUTIVE ENGINEER PWD PATACHARKUCHI TERRITORIAL ROAD SUB-DIVISION PATHSALA BARPETA. ------------ Advocate for : MR H DAS Advocate for : SC PWD appearing for THE STATE OF ASSAM AND 5 ORS. BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR ORDER Date : 24.07.2026 Heard Mr. H. Das, learned counsel, appearing for the petitioner in the above noted 02 (two) writ petitions. Also heard Mr. P. Nayak, learned Additional Advocate General, appearing for the State Respondents as well as Mr. R. Boro, learned Standing Counsel, Accountant General (A&E), Assam, appearing for the respondent no.2. 2. The petitioner by way of instituting WP(C).No.1678/2024, has Page No.# 4/25 assailed a communication dated 30.09.2020, by which he was directed to appear before a Enquiry Committee, constituted for ascertaining as to whether the petitioner had over stayed in his services. The petitioner has further prayed for a direction for release of his current salaries w.e.f. the month of August, 2020, and for continuance of the same till his actual date of retirement i.e. 31.07.2026. In WP(C).No.6384/2025, the petitioner has prayed for a direction upon the Respondent Authorities for correction of his date of birth recorded in his service book as “31.12.1956” to “28.07.1966”. 3. The petitioner, herein, was initially engaged as a muster roll labour in pursuance to the death of his father who was at that relevant point of time engaged as muster roll worker in the establishment of the respondent no.6. Such engagement of the petitioner as a muster roll labour was so effected vide a communication dated 18.07.1985. The petitioner being a pre 01.04.1993 engagee, his case was covered by a policy decision taken by the Government of Assam, for regularization of services of muster roll /work charged/casual employees, engaged prior to 01.04.1993.The case of the petitioner being so processed, on due approval being granted by the Government, the services of the petitioner came to be regularized vide order dated 07.10.2005 w.e.f. 22.07.2005. As the petitioner was discharging his duties as a regular employee in the Page No.# 5/25 establishment of the respondent no.6, a communication dated 30.09.2020, came to be issued to him requiring him to appear before a Enquiry Committee on 07.10.2020, for ascertaining as to whether he had over stayed in his service. Thereafter, the enquiry so held having been concluded, the Enquiry Committee submitted its report in the matter. However, the salaries of the petitioner was withheld w.e.f. August 2020. The Enquiry Committee on appreciating the statements made by the petitioner before it as well as from the statements of the Departmental Authorities and the contemporaneous records, had come to a conclusion that the petitioner was involved in the manipulation of his service records in connivance with one Mahananda Sarma, who was the Dealing Assistant. Accordingly , the petitioner was held to be responsible for the over stay in service occasioning in his case, which was held to have caused huge financial loss to the Government. The Enquiry Committee, on a consideration had found that the date of birth in his service book was recorded as 31.12.1956, basing on a school certificate produced by the petitioner. Being aggrieved by the conclusions reached by the Enquiry Committee in its report dated 20.10.2020, the petitioner had instituted WP(C).No.1678/2024. During the pendency of WP(C).No.1678/2024, the petitioner had Page No.# 6/25 again instituted a writ petition being WP(C).No.6384/2025, praying for correction of his date of birth as recorded in his service book. The date of birth now required to be recorded in his service book is demonstrated to be 28.07.1966. 4. Mr. H. Das, learned counsel, appearing for the petitioner, by reiterating the facts, noticed, hereinabove, has submitted that the petitioner had submitted a school certificate dated 27.05.2005, before the Respondent Authorities for the purpose of determination of his date of birth at the time when his services were being considered for regularization. He submits that from the school certificate as produced by him, his date of birth is found to be recorded, therein, as “28.07.1966”. He submits that accordingly, the petitioner would retire from his services only w.e.f., “31.07.2026”. However, the Respondent Authorities had prevented the petitioner from continuing in his services w.e.f. August 2020 and the salaries of the petitioner are in arrears w.e.f. August 2020. 5. Mr. H. Das, submits that the Respondent Authorities by projecting that the date of birth of the petitioner was “31.12.1956”, basing on a similar certificate brought on record by some other person, had proceeded to hold that the petitioner had over stayed in his services. He submits that no Departmental proceedings came to be instituted against the petitioner in this connection. However, an enquiry being directed, the petitioner had Page No.# 7/25 appeared before the constituted Enquiry Committee. He submits that the Enquiry Committee on a superficial examination of the records as well as the contentions raised by the petitioner, had proceeded to hold that the petitioner was due to retire from his services on “31.12.2016” upon verification of the records. It was further submitted that one Mahananda Sarma was a prima facie responsible for allowing the petitioner to continue upto July 2020 and for the reasons of which, a loss to the tune of Rs.12,46,113/- (Rupees Twelve Lakhs Forty Six Thousand One Hundred Thirteen), had occasioned to the Government exchequer. Mr. Das, highlights that the Enquiry Committee recommended institution of appropriate Disciplinary Action against said Mahananda Sarma and the petitioner, herein, as well as for recovery of the amount drawn as salary by the petitioner during the period of his such over stay. He further submits that no proceedings came to be instituted against the petitioner in the matter. 6. Mr. H. Das, further submits that the Respondent Authorities, not having further proceeded in the matter by instituting a Departmental proceeding against the petitioner, no recovery would be permissible to be so made from the pension and pensionary benefits of the petitioner after he had retired from his services on reaching the age of superannuation. 7. Mr. H. Das, further submits that a penalty of censure was imposed Page No.# 8/25 upon Mahananda Sarma for his role in allowing the petitioner to continue in his services beyond his date of superannuation. Mr. H. Das, thereafter by referring to the date of birth of the petitioner recorded in his Pan Card, Aadhar Card, Voter’s List etc, has submitted that in all the said documents, the date of birth of the petitioner was recorded as “28.07.1966”. He submits that the same being Government documents, the date of birth as recorded, therein, corresponding to the date of birth recorded in the school certificate produced by the petitioner i.e. “28.07.1966”, the same was mandated to be so considered by the Respondent Authorities and a rectification was mandated to be carried out with regard to the date of birth recorded in the service book of the petitioner as “31.12.1956”. Accordingly, he prays that the impugned Enquiry Report be set aside, with a further direction to the Respondent Authorities to effect correction in the date of birth of the petitioner as recorded in his service book. He also prays that the petitioner be thereafter, permitted to continue in his services till 31.07.2026, by reckoning his date of birth to be “28.07.1966”, with all due consequential benefits. 8. Per contra Mr. P. Nayak, learned Additional Advocate General, appearing for the State Respondents, at the outset has submitted that in the order issued towards regularization of the services of the petitioner as well as in the proposal submitted in this connection before the Page No.# 9/25 Government, the date of birth of the petitioner was recorded as “31.12.1956”. The petitioner at no point of time had raised any objections in this connection. Mr. Nayak, submits that the said date of birth recorded against the name of the petitioner in the orders/documents relating to the regularization of his services was so recorded basing on a school certificate furnished by the petitioner. He submits that on the services of the petitioner being regularized, his service book was opened and therein, also the date of birth of the petitioner was recorded as “31.12.1956”, and the petitioner in acceptance of the same as well as the other particulars recorded, therein, appended his thumb impression. 9. Mr. P. Nayak, learned Additional Advocate General, submitted that in the GPF account opened in respect of the petitioner his date of birth was recorded as “28.12.1956”, and the said date was reflected in all the statements that were issued to the petitioner over period of time. Mr. Nayak, further submits that the petitioner had never raised any objection in this connection. Mr. Nayak, by referring to the Enquiry Report of the Enquiry Committee, constituted to ascertain as to whether the petitioner had over stayed in his services, has submitted that the Enquiry Committee basing on the materials coming on record during the Enquiry had conclusively held that such over stay in services of the petitioner is on account of manipulations made by him in connivance with the Dealing Assistant of the establishment, wherein, the petitioner was serving. He Page No.# 10/25 submits that the over stay in service by the petitioner after the date of his retirement was admittedly on account of reasons attributable to him and accordingly, the salaries drawn by the petitioner during such period of over stay, would mandate to be recovered. 10. With regard to the prayer made by the petitioner for correction of his date of birth recorded in his service book, Mr. P. Nayak, submits that the said prayer was made only after the petitioner had retired from his services basing on the date of birth so recorded in the service book. The petitioner after the regularization of his services, opening of his service book as well as his GPF account, had never approached the Respondent Authorities, praying for rectification of his date of birth. Mr. Nayak, submits that the petitioner in support of his said prayer had produced a School Leaving Certificate dated 27.05.2005, with his date of birth recorded, therein, as “28.07.1966”. He submits that the said certificate was not the certificate produced by the petitioner while his case for regularization of his services was being so considered and further that the said certificate was not found available in the service records maintained in the establishment, wherein, the petitioner was serving. Accordingly, he submits that the said certificate cannot be given any credence. 11. In the above premises, Mr. P. Nayak, submits that the petitioner must be deemed to have superannuated from his services on completion Page No.# 11/25 of 60 years of age by reckoning his date of birth as “31.12.1956” i.e. the petitioner is to be deemed to have retired from his services w.e.f. 31.12.2016. He further submits that the salaries drawn by the petitioner w.e.f. 01.01.2017 till 31.07.2020 would mandate to be recovered from the petitioner. He submits that the salaries drawn in excess by the petitioner has already been quantified at Rs,12,46,113/- (Rupees Twelve Lakhs Forty Six Thousand One Hundred Thirteen). 12. I have heard the learned counsel for the parties and also perused the materials available on record. 13. The petitioner’s case for regularization of his services was processed by reckoning his date of birth to be “31.12.1956”. The said date of birth was recorded against the name of the petitioner in the order issued by the Government towards approving the regularization of services of the petitioner. Thereafter, the petitioner was regularized in his services vide an order dated 07.10.2005 w.e.f. 22.07.2005. In pursuance to the regularization of his services, the service book of the petitioner was opened and therein, his date of birth was recorded as “31.12.1956”, basing on a school leaving certificate, furnished by the petitioner. The petitioner now being a regular employee and also entitled to pension and pensionary benefits, a GPF account came to be opened in the name of the petitioner. From the statements of the said GPF account, it is found that Page No.# 12/25 the date of birth of the petitioner, therein, was also recorded as “28.12.1956”. The petitioner during his long period of service w.e.f 2005 till 2016, had never approached the Respondent Authorities highlighting any error existing in his recorded date of birth in his service book as well as in his GPF account. The respondents on a scrutiny being made with regard to the payment of salaries in the establishment, wherein, the petitioner was serving and then it having come to the notice of the Respondent Authorities that the petitioner was to retire from his services on 31.12.2016, and had over stayed in his services, an Enquiry Committee was constituted and the petitioner was directed to appear before the said Enquiry Committee. The Enquiry Committee on a consideration of the materials coming on record, during the Enquiry as well as appreciating the statements made before it by the petitioner and on appreciating the contemporaneous records, found that in the records maintained with regard to the services of the petitioner, his date of birth was recorded as “31.12.1956” which was based on a school leaving certificate, wherein, his date of birth was recorded as “31.12.1956”. The other School Leaving Certificate, relied upon by the petitioner, wherein, his date of birth as recorded as “28.07.1966” was not to be so found available in the records. The Enquiry Committee had then examined the role of one Mahananda Sarma, a Dealing Assistant in the establishment, and thereafter, proceeded to draw a conclusion that the records were manipulated by the Page No.# 13/25 said dealing Assistant, in connivance with the petitioner which had led to the petitioner over staying in his service. The Enquiry Committee also concluded that the petitioner was due to retire on “31.12.2016”, as per the contemporaneous records of his service. Mahananda Sarma, was held to be a prima facie responsible for permitting the petitioner to continue in his services after 31.12.2016 till July 2020. Further, the Enquiry Committee had quantified the amount recoverable from the petitioner on account of his over stay to be Rs.12,46,113/- (Rupees Twelve Lakhs Forty Six Thousand One Hundred Thirteen). 14. Having drawn the said conclusions, the Enquiry Committee, had recommended for initiation of appropriate Disciplinary action, both against the said Mahananda Sarma, and the petitioner, herein, for recovery of the amount drawn as salary by the petitioner during the period of his over stay in his services. 15. From the materials brought on record, this Court does not find that the said recommendation made by the Enquiry Committee was acted upon by the Respondent Authorities in respect of the petitioner, herein. The petitioner may have a hand in over staying in his services beyond the date of retirement but the exact role of the petitioner in the matter was not determined by the respondents by drawing an appropriate Departmental proceedings against him. Accordingly, the allegation of Page No.# 14/25 misrepresentation and/or manipulation committed by the petitioner in the matter in the considered view of this Court remains in the realm of a speculation only. 16. The Respondents from the date of birth of the petitioner recorded in his service book as well as in his GPF account, had the knowledge that the petitioner was slated to superannuate from his services w.e.f. “31.12.2016”. However, it is not found that any notice in this connection came to be issued to the petitioner intimating him about his date of superannuation from service. Accordingly, the Respondents also cannot be held to be not blameworthy for the over stay in service occasioning in respect of the petitioner, herein. This Court notices that the petitioner was earlier a muster roll worker and thereafter, was regularized as a Grade-IV employee and accordingly, he cannot be imputed with the knowledge of the niceties of the Service Rules and Regulations and the date of his superannuation was one aspect which was to be monitored by his superiors in his Department. 17. Accordingly, having drawn the said conclusions, with regard to the over stay in service by the petitioner, this Court would now consider the prayer made by the petitioner more specifically in WP(C).No.6384/2025, for a correction of the date of birth of the petitioner recorded in his service book. The said prayer is found to have been made by the Page No.# 15/25 petitioner only by way of instituting the said writ petition. 18. It is a settled position of law that, in the event, an erroneous date of birth has been recorded in the service book of an employee, the same is permissible to be so rectified prior to 03 (three) years from the date of superannuation of such employee. No such application is found by this Court to have been submitted by the petitioner in the matter in accordance with the procedure in vogue for correction of date of birth. The petitioner has relied upon the date of birth recorded in his Pan Card, Aadhar Card, Voter ID Card etc, in support of his prayer for correction of the date of birth recorded in his service book. The petitioner has now projected that his date of birth is actually “28.07.1966” and for the purpose has also relied upon a school Leaving Certificate dated 27.05.2005. 19. As noticed, hereinabove, the School Leaving Certificate dated 27.05.2005, wherein, the date of birth of the petitioner has been recorded as 28.07.1966, is not found in the service records of the petitioner. It is also not the case projected by the petitioner that it was the said certificate that was produced by him at the time when his case for regularization was being so considered. In the event, it was the said School Leaving Certificate with the date of birth of the petitioner, therein, recorded as “28.07.1966”, which was produced before the Respondent Authorities, the Page No.# 16/25 petitioner would have objected to the recording of his date of birth in his service book as “31.12.1956”. The petitioner is found to have accepted the date of birth recorded in his service book as “31.12.1956”, by acknowledging the same to be correct by putting his thumb impression, therein. Further, the petitioner was in receipt of the GPF account statements from time to time and in the said statements also the date of birth of the petitioner being recorded as “28.12.1956”, the petitioner had not also raised any grievance in this connection. 20. Be that as it may, the petitioner from his service book as well as the School Leaving Certificate available in the service records and from the statements of GPF accounts is found to have been born in “December, 1956” and not “July, 1966”. The date of birth as recorded in the Pan Card, Aadhar Card and Voter ID Card, in the considered view of this Court being document subsequent to the joining in service by the petitioner and such date of birth recorded also having an element of a self declaration being made by the petitioner, would not mandate to be reckoned for the purpose of determining the actual date of birth of the petitioner. Accordingly, the prayer made by the petitioner in WP(C).No.6384/2025 stands rejected. 21. In view of the above conclusions, this Court having found that the Departmental Authorities had also contributed towards over stayal in Page No.# 17/25 service by the petitioner, by not acting upon the materials available on record with regard to the date on which the petitioner was to superannuate from his services and further, this Court not being able to determine that the petitioner had committed a mis-representation in the matter and/or had manipulated records, proceeds to hold that recovery under such circumstances of the salaries drawn by him during the period of such over stay would not mandate to be recovered. 22. The Hon’ble Supreme Court in the case of Col. B.J. Akkara (Rtd.) Vs. Govt. of India, reported in (2006) 11 SCC 709, on consideration of the similar issue arising in the present proceeding held as under: "27. The last question to be considered is whether relief should be granted against the recovery of the excess payments made on account of the wrong interpretation/ misunderstanding of the circular dated 7-6- 1999. This Court has consistently granted relief against recovery of excess wrong payment of emoluments/allowances from an employee, if the following conditions are fulfilled (vide Sahib Ram v. State of Haryana [1995 Supp (1) SCC 18 1995 SCC (L&S) 248), Shyam Babu Verma v. Union of India ((1994) 2 SCC 521 1994 SCC (L&S) 683 (1994) 27 ATC 1211, Union of India v. M. Bhaskar [(1996) 4 SCC 416 1996 SCC (L&S) 967] and V. Gangaram v. Regional Jt. Director [(1997) 6 SCC 139: 1997 SCC (L&S) 1652]): (a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee. (b) Such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. 28. Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of Page No.# 18/25 judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery. 29. On the same principle, pensioners can also seek a direction that wrong payments should not be recovered, as pensioners are in a more disadvantageous position when compared to in-service employees. Any attempt to recover excess wrong payment would cause undue hardship to them. The petitioners are not guilty of any misrepresentation or fraud in regard to the excess payment. NPA was added to minimum pay, for purposes of stepping up, due to a wrong understanding by the implementing departments. We are therefore of the view that the respondents shall not recover any excess payments made towards pension in pursuance of the circular dated 7-6-1999 till the issue of the clarificatory circular dated 11-9- 2001. Insofar as any excess payment made after the circular dated 11-9-2001, obviously the Union of India will be entitled to recover the excess as the validity of the said circular has been upheld and as pensioners have been put on notice in regard to the wrong calculations earlier made." 23. The Hon’ble Supreme Court, in its decision in the case of Syed Abdul Qadir Vs. State of Bihar, reported in (2009) 3 SCC 475, on noticing that the excess payment so made to the appellants therein, which was sought to be recovered was so made on account of a mistake and wrong interpretation of the rules holding the field, held that the appellants, therein, cannot be held responsible in such a situation and the recovery of the excess amount should not be ordered, especially, when Page No.# 19/25 the employees had subsequently retired from their services. This Court further observed that in general parlance, recovery is prohibited by Courts where there exists no mis-representation or fraud played on the part of the employee and the excess payment has been made by applying a wrong interpretation of a rule or order. The Hon’ble Supreme Court had held as under: - "59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter-affidavit, admitted that it was a bonafide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made.” 24. The Hon’ble Supreme Court in the case of State of Punjab Vs. Rafiq Mashih (White Washer), reported in (2015) 4 SCC 334, examined the validity of an order passed by the State to recover the monetary gains wrongly extended to the employees drawing in excess of their entitlements without any fault or misrepresentation on the part of such employees. The Hon’ble Supreme Court, upon considering the situation of hardship caused to an employee, if recovery is directed to Page No.# 20/25 reimburse the employee and accordingly, disallowed the same, exempting the beneficiary employees from such recovery, it was held thus: "8. As between two parties, if a determination is rendered in favour of the party which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the Preamble of the Constitution of India. The right to recover being pursued by the employer will have to be compared, with the effect of the recovery on the employee concerned. If the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover. …………………………………………. 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, summarize the following few situations, wherein recoveries by the employers, would be Impermissible in law: (1) 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. (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 Page No.# 21/25 the employer's right to recover." 25. The Hon’ble Supreme Court in a recent decision in the case of Jogeswar Sahoo & Ors. Vs. District Judge, Cuttack & Ors, reported in (2025) SCC Online SC 724, by noticing its earlier decision on the issue had drawn the following conclusions: - “7. The issue falling for our consideration is not about the legality of the retrospective promotion and the financial benefit granted to the appellants on 10.05.2017. The issue for consideration is whether recovery of the amount extended to the appellants while they were in service is justified after their retirement and that too without affording any opportunity of hearing. 8. The law in this regard has been settled by this Court in catena of judgments rendered time and again; Sahib Ram vs. State of Haryana1, Shyam Babu Verma vs. Union of India2, Union of India vs. M. Bhaskar3 and V. Gangaram vs. Regional Jt. Director4 and in a recent decision in the matter of Thomas Daniel vs. State of Kerala & Ors.5. 9. This Court has consistently taken the view that if the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee or if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous, such excess payments of emoluments or allowances are not recoverable. It is held that such relief against the recovery is not because of any right of the employee but in equity, exercising judicial discretion to provide relief to the employee from the hardship that will be caused if the recovery is ordered. 10. In Thomas Daniel (supra), this Court has held thus in paras 10, 11, 12 and 13: “10. In Sahib Ram v. State of Haryana1 this Court restrained recovery of payment which was given under the upgraded pay scale on account of wrong construction of relevant order by the authority concerned, without any misrepresentation on part of the employees. It was held thus: “5. Admittedly the appellant does not possess the required educational Page No.# 22/25 qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation, the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs.” 11. In Col. B.J. Akkara (Retd.) v. Government of India this Court considered an identical question as under: “27. The last question to be considered is whether relief should be granted against the recovery of the excess payments made on account of the wrong interpretation/understanding of the circular dated 7-6- 1999. This Court has consistently granted relief against recovery of excess wrong payment of emoluments/allowances from an employee, if the following conditions are fulfilled (vide Sahib Ram v. State of Haryana [1995 Supp (1) SCC 18 : 1995 SCC (L&S) 248], Shyam Babu Verma v. Union of India [(1994) 2 SCC 521 : 1994 SCC (L&S) 683 : (1994) 27 ATC 121], Union of India v. M. Bhaskar [(1996) 4 SCC 416 : 1996 SCC (L&S) 967] and V. Gangaram v. Regional Jt. Director [(1997) 6 SCC 139 : 1997 SCC (L&S) 1652]): (a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee. (b) Such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. 28. Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service Page No.# 23/25 would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery. 29. On the same principle, pensioners can also seek a direction that wrong payments should not be recovered, as pensioners are in a more disadvantageous position when compared to in-service employees. Any attempt to recover excess wrong payment would cause undue hardship to them. The petitioners are not guilty of any misrepresentation or fraud in regard to the excess payment. NPA was added to minimum pay, for purposes of stepping up, due to a wrong understanding by the implementing departments. We are therefore of the view that the respondents shall not recover any excess payments made towards pension in pursuance of the circular dated 7-6-1999 till the issue of the clarificatory circular dated 11-9-2001. Insofar as any excess payment made after the circular dated 11-9-2001, obviously the Union of India will be entitled to recover the excess as the validity of the said circular has been upheld and as pensioners have been put on notice in regard to the wrong calculations earlier made.” 26. Applying the decisions of the Hon’ble Supreme Court, noticed above, to the facts of the present case, this Court is of the considered view that the recovery of the amount of Rs.12,46,113/- (Rupees Twelve Lakhs Forty Six Thousand One Hundred Thirteen), his pension and pensionary benefits to be clearly iniquitous, harsh and arbitrary and Page No.# 24/25 accordingly, directs that the said recovery would not be permissible to be made. 27. In view of the above discussion, the recovery of the salary drawn by the petitioner during his period of over stayal, having being held by this Court to be not permissible, the Respondent Authorities are now directed to process the matter for preparation of a pension proposal in respect of the petitioner for disbursement to him his pension and pensionary benefits by reckoning that the petitioner had superannuated from his services w.e.f. 31.12.2016. The matter be processed and a pension proposal be finalized. The pension proposal be thereafter, forwarded to the Office of the Accountant General (A&E), Assam, within a period of 03 (three) months from the date of receipt of a certified copy of this order. The Office of the Accountant General (A&E), Assam, on receipt of such proposal for disbursement of pension and pensionary benefits to the petitioner, herein, shall process the same and within a further period of 02 (two) months from the date of receipt of such proposal issue the requisite Pension Payment Order (PPO)/Gratuity Payment Order (GPO), to the petitioner. As this Court has permitted to retain the salaries drawn by him w.e.f. 01.01.2017 till 31.07.2020, the pension of the petitioner would now be authorized only w.e.f., 01.08.2020. 28. This Court having now held that the petitioner stood retired from Page No.# 25/25 his services w.e.f. 31.12.2016 and on account of the pendency of the present proceeding, the pension and pensionary benefits of the petitioner not having been settled, requires the Respondent Authorities to authorize to the petitioner a provisional pension pending finalization of his pension and pensionary benefits. The said orders authorizing to petitioner his provisional pension as well as his provisional gratuity be issued within a period of 01 (one) month from the date of a receipt of a certified copy of this order. 29. In view of the above discussion, the writ petition being WP(C).No.1678/2024 stands disposed of. The writ petition being WP(C).No.6384/2025, stands dismissed. However, there would be no order as to costs. JUDGE Comparing Assistant