Page No.# 1/15 GAHC010123672024 2026:GAU-AS:7404 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/3164/2024 DHANESH PRASAD SINGH, M.A, B.ED RETD. PRINCIPAL, VIVEKANANDA VIDYALAYA H.S SCHOOL, TINSUKIA. R/O- JYOTINAGAR, NEW DEVELOPMENT AREA, P.O, P.S AND DIST- TINSUKIA, PIN-786125 VERSUS THE STATE OF ASSAM AND 4 ORS REP. BY THE SECRETARY TO THE GOVT OF ASSAM, SCHOOL EDUCATION DEPARTMENT, DISPUR, GUWAHATI-781006 2:THE DIRECTOR OF SECONDARY EDUCATION ASSAM KAHILIPARA GUWAHATI-781019 3:THE DIRECTOR OF PENSION ASSAM HOUSEFED COMPLEX ASSAM DISPUR GUWAHATI-06 4:THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM FINANCE DEPARTMENT DISPUR Page No.# 2/15 GUWAHATI-781006 5:THE TREASURY OFFICER MARGHERITA TREASURY DISTRICT- TINSUKIA PIN-78618 Advocate for the Petitioner : MR. S K DAS, MR D BARMAN Advocate for the Respondent : SC, SEC. EDU., GA, ASSAM,SC, FINANCE Linked Case : WP(C)/4500/2023 DHANESH PRASAD SINGH RETIRED PRINCIPAL VIVEKANANDA VIDYALA HS SCHOOL TINSUKIA R/O- JYOTINAGAR NEW DEVELOPMENT AREA P.O. P.S. AND DIST. TINSUKIA PIN- 786125. VERSUS THE STATE OF ASSAM AND 5 ORS REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF ASSAM DEPARTMENT OF SCHOOL EDUCATION DISPUR GUWAHATI-781006. 2:THE DIRECTOR OF SECONDARY EDUCATION ASSAM KAHILIPARA GUWAHATI-781019. 3:THE ACCOUNTANT GENERAL OF ASSAM MAIDAMGAON BELTOLA GUWAHATI-781029. 4:THE DIRECTOR OF PENSION Page No.# 3/15 ASSAM HOUSEFED COMPLEX ASSAM DISPUR GUWAHATI-781006. 5:COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM FINANCE DEPTT. DISPUR GUWAHATI-6. 6:THE TREASURY OFFICER MARGHERITA TREASURY DIST. TINSUKIA ASSAM PIN- 786181. ------------ Advocate for : MR. S K DAS Advocate for : SC SEC. EDU. appearing for THE STATE OF ASSAM AND 5 ORS BEFORE HON’BLE MR. JUSTICE N. UNNI KRISHNAN NAIR ORDER 25/05/2026 Heard Mr. S K Das, learned counsel for the petitioners in the above noted two writ petitions and Ms. R Baruah, learned Standing counsel, Department of School Education, appearing for the respondent Nos. 1 & 2 in the above noted two writ petitions. Also heard Ms. S Baruah, learned Standing counsel, Department of School Education, Mr. G Pegu, learned Additional Senior Government Advocate and Mr. B Sarma, learned Standing counsel, Accountant General, appearing for their respective respondents in the above noted two writ petitions. Page No.# 4/15 2. The issues involved in the above noted two writ petitions, being interconnected and also being between the same parties, with the consent of the learned counsels for the parties, the matters were analogously heard and are being disposed of by this common order. 3. The petitioner by way of instituting WP(C) No. 4500/2023, has prayed for a direction upon the respondent authorities to finalise his pension and pensionary benefits as per the last salary drawn by him and to release him the arrears, thereof. The petitioner has also prayed for a direction upon the respondent authorities for release of his gratuity and GPF amount, along with payment of interest for the delayed authorisation of his pension and pensionary benefits in terms of Rule 197-A of the Assam Services (Pension) Rules, 1969 (hereinafter, referred to as the Rules of 1969). 4. As projected in the said writ petition, the petitioner, who was initially appointed as a subject Teacher in English, in pursuance to a regular process of selection, was appointed as the Principal of the Vivekananda Vidyalaya Higher Secondary School on 24.07.2017. The petitioner, on his such promotion as the Principal of the said school, had prayed before the respondent authorities for extending to him pay protection by reckoning the pay so drawn by him against the post of subject Teacher. The said prayer of the petitioner was considered by the respondent authorities and vide communication dated 12.06.2018, the Deputy Secretary to the Government of Assam, Secondary Education Department had protected the last pay of the petitioner. Accordingly, the petitioner continued in his services and retired from his services on reaching the age of superannuation, w.e.f. 31.01.2023, after rendering 35 years 13 days of continuous service. Page No.# 5/15 It is projected that although, the petitioner upon his superannuation, was authorised his GIS and Leave Encashment benefits, his pension and pensionary benefits were not realized. The pension proposal in respect of the petitioner not having been processed, the petitioner had approached this Court by way of instituting WP(C) No. 4500/2023, praying for the reliefs, as noticed hereinabove. During the pendency of the said writ petition, the respondent authorities had proceeded to prepare a pension proposal in respect of the petitioner and during the processing of the same, it was found that an amount of Rs.86,154/- (Rupees Eighty Six Thousand One Hundred Fifty Four) was required to be recovered from the petitioner on account of excess drawal of pay due to wrong fixation of pay while extending to him benefits of the 2nd financial upgradation under the Assured Career Progression Scheme (ACPS). It is projected that the respondent authorities had concluded that the petitioner was entitled to have his pay fixed at the stage of Rs.27,150/- (Rupees Twenty Seven Thousand One Hundred Fifty), w.e.f. 01.01.2012, on being granted the second financial upgradation under ACPS, but his pay was so fixed at the stage of Rs.27,920/- (Rupees Twenty Seven Thousand Nine Hundred Twenty), accordingly, a recovery of the excess pay was mandated. The petitioner with a view to have his pension proposal expeditiously processed, had deposited the said amount of Rs.86,154/- (Rupees Eighty Six Thousand One Hundred Fifty Four) by way of depositing the said amount in the concerned Government Head of Account. The petitioner being aggrieved by the recovery, so made from him, had approached this Court by way of instituting WP(C) No. 3164/2024. Page No.# 6/15 5. Mr. Das, learned counsel for the petitioners, at the outset, has submitted that during the pendency of the present proceedings, the respondent authorities had processed the pension proposal of the petitioner and a Pension Payment Order was issued in his favour and the petitioner, vide the same, was authorised his pension, w.e.f. 01.02.2023. It is also projected that the petitioner was authorised his Death-cum-Gratuity benefits. 5.1 The learned counsel for the petitioner submits that the amount of Rs.86,154/- (Rupees Eighty Six Thousand One Hundred Fifty Four), recovered from him as excess drawal was so recovered without ascertaining as to whether the petitioner was in any manner responsible for fixation of his pay, on being granted the second financial upgradation benefits under ACPS. It is submitted that the petitioner was in no way connected with the fixation so made and the same was so made by the respondent authorities without any reference to the petitioner. Accordingly, he submits that the said amount was not mandated to be recovered from the petitioner. 5.2 The learned counsel for the petitioner, in support of his submissions, has relied upon the decision of the Hon’ble Supreme Court in the case of State of Punjab and Others Vs. Rafiq Masih (White Washer), reported in (2015) 4 SCC 334. 5.3 Mr. Das, learned counsel for the petitioner has also relied upon an Office Memorandum dated 14.06.2019, issued by the Finance Department, Government of Assam, with regard to recovery of wrongful/excess payment made to Government servants. 5.4 It is submitted that in terms of the said Office Memorandum, the excess Page No.# 7/15 over drawal amount, as determined in respect of the petitioner, herein, being below Rs.1,00,000/- (Rupees One Lakh), the same was mandated to be waived. The learned counsel after having made the said submissions, has submitted that the petitioner, who had retired on 31.01.2023, was not authorised his pension and pensionary benefits, even a provisional pension was not authorized to the petitioner, till the passing of the directions in this connection by this Court in WP(C) No. 4500/2023. 5.5 It is submitted that only after the passing of the said directions by this Court, the respondent authorities, vide an order dated 18.06.2024, had authorised to the petitioner provisional pension, w.e.f. 01.02.2023, till issuance of the Pension Payment Order in the matter by the Director of Pensions, Assam. 5.6 The learned counsel for the petitioner further submits that it is only on 24.02.2026 that the Director of Pensions, Assam had issued a Pension Payment Order authorising to the petitioner regular pension along with other pensionary benefits. 5.7 In the above premises, it is submitted that while the recovery made from the petitioner towards the excess pay and allowances drawn by him be directed to be re-authorized to the petitioner, this Court would also direct the respondent authorities to pay interest to the petitioner for the delayed payment of his pension and pensionary benefits in terms of the provisions of Rule 197-A of the Assam Services (Pension) Rules, 1969. 6. Per contra, Ms. R Baruah, learned Standing counsel, Department of Schools Education, has submitted that the respondent authorities, while processing the pension proposal of the petitioner, had found that the petitioner Page No.# 8/15 had drawn excess pay on account of a wrong fixation of his pay, while authorising to him, his second financial upgradation under ACPS. She submits that the same having come to the notice, the petitioner was given an opportunity to pay the amount involved and accordingly, the petitioner had on 15.06.2024, paid the amount determined to have been drawn excess by the petitioner. It is submitted that thereafter, the proposal was processed and forwarded to the Director of Pensions, Assam, for finalisation of the pension and pensionary benefits of the petitioner, which was accordingly finalised. 6.1 Ms. R Baruah, learned Standing counsel, Department of Schools Education further submits that the petitioner, vide an order dated 18.06.2024, was authorised a provisional pension, w.e.f. 01.02.2023. She submits that the petitioner, having admittedly drawn excess pay and allowances on account of wrong fixation of his pay, the amount so drawn in excess was rightly recovered by the respondent authorities. She submits that the petitioner, having been authorized the provisional pension, although, with some delay with retrospective effect, i.e., w.e.f. 01.02.2023, this Court would be pleased not to pass any direction imposing an interest upon the respondent authorities for the delayed finalisation of the pension and pensionary benefits of the petitioner, herein. 7. I have heard the learned counsels for the parties and also perused the materials available on record. 8. The materials brought on record do not reveal that the petitioner in any manner was responsible for the wrong fixation of his pay, while he was granted his second financial upgradation under the ACPS. Such fixation of pay of the petitioner is found to have been done by the respondent authorities. Accordingly, the petitioner is not in any manner blameworthy for the wrong Page No.# 9/15 fixation of pay and the consequential excess pay drawn by him during his service tenure. 9. The Hon’ble Supreme Court in the case of Rafiq Masih (White Washer) (supra) has held that when the excess drawal of pay had not occasioned on account of any misrepresentation made by the employee concerned, such recovery would not be permissible to be made. 10. It is also seen that the State of Assam by Office Memorandum No. Fin (ECIII).1808/2018/2 dated 14.06.2019 has issued a set of instructions towards deduction of excess payments made in respect of Grade-III and Grade-IV employees of the State. By the said circular following the Judgment of Rafiq Masih (Supra), the State Government has instructed that in cases of excess payment in respect of Grade-III and Grade-IV employees unless it is seen that the excess payment was made for the fault of the employee concerned, no deduction is permissible. The said Office Memorandum is extracted below: “GOVERNMENT OF ASSAM FINANCE DEPARTMENT DISPUR:: GUWAHATI, 06 OFFICE MEMORANDUM No. Fin (EC-III).1808/2018/2 Dated Dispur, the 14th June 2019 Subject: Recovery of wrongful/excess payment made to the Government Servants 1. Finance Department has received several proposals from the Administrative Departments seeking view on the recovery of excess drawal of emoluments than the entitlements of the employers, especially at the time of finalization of the pension papers of the incumbents. Page No.# 10/15 2. In this connection, reference is drawn to the Govt. of India O.M. F.No.18/03/2015-Estt. (Pay-I) dtd. 2nd March, 2016. 3. The issue had come up for consideration before the Hon’ble Supreme Court in the case of State of Punjab & Ors —vs- Rafiq Masih (White Washer) etc. in CA No. 11527 of 2014 (Arising out of SLP© No. 11684 of 2012) and was decided by the Hon'ble Court on 18.12.2014. 4. The Hon’ble Supreme Court while observing that 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, has summarized the following few situations, wherein recoveries by the employers would be impermissible in law : i. Recovery from employees belonging to Class III and Class-IV service (for Group ‘C’ and Group ‘D’ service). ii. Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. iii. Recovery from 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 for outweigh the equitable balance of the employer’s right to recover. 5. All Departments are to act in accordance with the above stipulations while Page No.# 11/15 deciding cases of wrongful/excess payments. 6. However, in all cases where the excess payments on account of wrong pay fixation, grant of scale without due approvals, promotions without following the procedure, or in excess of entitlements etc. come to notice, immediate corrective action must be taken. 7. In a case like this where the authorities decide to rectify an incorrect order, a show-cause notice may be issued to the concerned employee informing him of the decision to rectify the order which has resulted in the overpayment. Reasons for the decision should be clearly conveyed so as to enable the employee to represent against the same. Speaking orders may thereafter be passed after consideration of the representations, if any, made by the employee. 8. Whenever any excess payment is made on account of fraud, misrepresentation, collusion, favoritism, negligence or, carelessness, etc. roles of those responsible for overpayments in such cases, and the employees who benefitted from such actions should be identified, and departmental/criminal action should be considered in appropriate cases. 9. However, when the waiver of recovery in the above mentioned situations is considered, Pension and Public Grievances Department is empowered with financial ceiling of Rs.1,00 Lakh (Rupees One lakh) in each individual case where recovery is to be waived, and beyond Rs.1.00 Lakh (Rupees One Lakh) the express approval of Finance Department is to be obtained. 10. This O.M, will be applicable to all pending cases of wrongful/excess drawal as on 18.12.2014 (i.e, date of judgment in CA No. 11527/2014). Sd/- (Samir K. Sinha, IAS) Principal Secretary to the Government of Assam Page No.# 12/15 Finance Department” 11. Accordingly, in the light of the decision of the Hon’ble Supreme Court in the case of Rafiq Masih (White Washer) (supra) as well as the provisions of the Office Memorandum dated 14.06.2019, this Court is of the considered view that the amount of Rs.86,154/- (Rupees Eighty Six Thousand One Hundred Fifty Four) determined to have been drawn in excess by the petitioner during his service tenure would not mandate to be recovered, inasmuch as, there was no fault on the part of the petitioner in such wrong fixation of his pay and he had also not been alleged to have misrepresented before the respondent authorities, which had led to such wrong fixation of his pay. Accordingly, the recovery as directed against the petitioner in the matter is held to be not permissible and the respondents are directed to reauthorize to the petitioner an amount of Rs.86,154/- (Rupees Eighty Six Thousand One Hundred Fifty Four), within a period of 2 (two) months from the date of receipt of a certified copy of this order. 12. Having drawn the said conclusions, this Court would now consider the prayer of the petitioner for imposing an interest on the amounts due to him for the delay occasioning in finalisation of his pension and pensionary benefits. The petitioner in this connection, has relied upon the provisions of Rule 197-A of the Rules of 1969. 13. The provisions of Rule 197-A of the Rules of 1969, being relevant, is extracted hereinbelow: "197-A. Interest on delayed payment of Pension and Gratuity- (1) If the payment of pension and gratuity has been authorised later than the date when its payment becomes due and it is clearly established that the delay in payment Page No.# 13/15 was attributable to administrative lapses, interest shall be paid at such rates as specified under sub-rule (b) of this rule and instructions issued by the Government from time to time: Provided that the delay in payment was not caused on account of failure on the part of the Government servant to comply with the procedures laid down by the Government from time to time for processing his pension papers. (2) Every case of delayed payment of pension and gratuity shall be considered by the Secretary of the Department in respect offices and where the Secretary of the Department is satisfied that the delay in payment of pension and gratuity was caused on account of administrative lapses the Secretary of the Departmen shall sanction payment of interest with the concurrence of Pension and Public Grievances Department at such rate as prescribed under sub-rule (6) below: (3) In all cases where the payment of interest has been sanctioned by the Secretary of the department, such Department shall fix the responsibility and take disciplinary action against the Government servant (S) who is/are found responsible for the delay in payment of pension/gratuity and the erring officials shall be made to compensate the Government for the loss sustained by the Government for such negligence/lapse, leading to payment of interest. It shall be mandatory on the part of the Administrative Department or Heads of the Department to fix responsibility for such expenses incurred by the Government for lapses of the Government servant concerned without any exception under any circumstances whatsoever.” 14. A perusal of the provisions of Rule 197-A would reveal that an interest on delayed pension and gratuity would be permissible to be so directed to be imposed only when a determination is made that such delay was on account of administrative lapses. Page No.# 14/15 15. Sub Rule (2) of Rule 197-A of the Rules of 1969 mandates that every case of delayed payment of pension and gratuity shall be considered by the Secretary of the Department in respect of its employees and employees of its attached and sub-ordinate offices and where the Secretary of the Department is satisfied that the delay in payment of pension and gratuity was caused on account of administrative lapses, the Secretary of the Department shall sanction payment of interest with concurrence of the Pension and Public Grievances Department at such rate as may be prescribed. 16. Accordingly, there being a necessity for a determination of the fact as to whether the delay occasioning in finalisation of the petitioner’s pension and pensionary benefits was on account of administrative lapses and such determination, being required to be made by the Secretary of the Department concerned, this Court at this stage refrains from making the said consideration on its merit and requires the petitioner to submit a representation before the Secretary to the Government of Assam, Department of School Education, invoking the provisions of Rule 197-A of the Rules of 1969. 17. In the event, such representation is preferred by the petitioner within a period of 1 (one) month from today, the Secretary to the Government of Assam, Department of School Education, shall examine the same strictly in accordance with the provisions of Rule 197-A of the Rules of 1969 and dispose of the representation by way of a speaking order. 18. In the event, it is found that there was a delay occasioning in authorisation of the pension and pensionary benefits to the petitioner on account of administrative lapses, the Secretary to the Government of Assam, Department of School Education, shall determine the interest required to be Page No.# 15/15 received by the petitioner for the delayed payment of his pension and pensionary benefits. 19. With the above observations and directions, the writ petitions, being WP(C) No. 3164/2024 and WP(C) No. 4500/2023 stand disposed of. JUDGE Comparing Assistant