Page No.# 1/11 GAHC010108962023 2026:GAU-AS:1216 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/3222/2023 SUBRATA DEVI W/O- LATE SATISH CH. SARMA, R/O- PORAKUCHI, P.O. KUMARKUCHI, DIST. KAMRUP, ASSAM VERSUS THE STATE OF ASSAM AND 4 ORS. REPRESENT THROUGH THE SECRETARY TO THE GOVT. OF ASSAM, PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT, ASSAM, DISPUR, GUWAHATI-06, KAMRUP. 2:THE COMMISSIONER PANCHAYAT AND RURAL DEVELOPMENT ASSAM JURIPAR PANJABARI GUWAHATI-37. 3:BLOCK DEVELOPMENT OFFICER PUB-NALBARI DEVELOPMENT BLOCK DIGHELI. 4:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM FINANCE DEPARTMENT DISPUR GUWAHATI-06. 5:THE ACCOUNTANT GENERAL ASSAM MAIDAMGAON BELTOLA Page No.# 2/11 GUWAHATI-29 Advocate for the Petitioner : MR. S K BARKATAKI, MR D K NATH,MS B SHARMA,MS M DAS Advocate for the Respondent : SC, P AND R.D., SC, AG,SC, FINANCE BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR ORDER Date : 28-01-2026 Heard Mr. D.K. Nath, learned counsel for the petitioner. Also heard Mr. K. Konwar, learned Addl. A.G. Assam appearing for the respondent Nos. 1 to 3, Mr. A. Chaliha, learned standing counsel, Finance Department, Assam appearing for the respondent No. 4 and Mr. P. Chakraborty, learned standing counsel office of the AG(A&E), Assam representing respondent No. 5. 2. The petitioner by way of instituting the present proceeding has presented a challenge to the deduction effected in respect of the pensionary benefits receivable by the husband of the petitioner for an amount of Rs. 18,37,500/- (Rupees Eighteen Lakhs Thirty Seven Thousand Five Hundred) being the salary drawn by her husband for the period w.e.f. 01-04-2016 to 30-04-2019 on the ground of overstay in service. 3. The husband of the petitioner had joined his services as a “Gram Sevak”. Basing on the matriculation certificate of the petitioner’s husband, the date of his retirement came to be recorded in his service book as 31-03-2019. Accordingly, the husband of the petitioner, was allowed to proceed on retirement on reaching the age of superannuation w.e.f. 31-03-2019. After his such retirement occasioning on 31-03-2019, the respondent Page No.# 3/11 authorities upon verifying his service book along with the age reflected in his HSLC certificate, it was found that the petitioner’s husband was to retire from his services w.e.f. 31-03-2016. Said computation was made on the basis of the age reflected in his said matriculation certificate, wherein he was shown to be 17 years as on 01-03-1973. The issue having come to the notice of the respondent authorities, further processing of the pension and pensionary benefits receivable by the husband of the petitioner was kept pending. Thereafter, the respondent authorities corrected the date of birth of the petitioner in his service book as 01-03-1956 and basing thereon the date of retirement was computed as 31-03-2016. Petitioner having continued his services till 31-03-2019, it was held by the respondent that the husband of the petitioner for the period w.e.f. 01-04- 2016 to 31-03-2019 would not be entitled to draw any pay and allowances. Basing on the said processing, the pension proposal of the petitioner was prepared and forwarded to the office of the AG(A&E), Assam and therein it was stipulated that the amount of Rs. 18,37,500/- (Rupees Eighteen Lakhs Thirty Seven Thousand Five Hundred) was required to be recovered from his pension and pensionary benefits, inasmuch as, the petitioner was found to have drawn the said amount as salary for the period w.e.f. 01-04-2016 to 31-03-2019. Thereafter, the petitioner’s husband was authorized his pension and pensionary benefits with the recovery of an amount of Rs. 18,37,500/- which was held to be over drawl of salary and other allowances. The husband of the petitioner unfortunately passed away on 11-12-2021. The petitioner had, thereafter, instituted the present proceeding praying for authorizing to her the said deducted amount of Rs. 18,37,500/- (Rupees Eighteen Lakhs Thirty Seven Thousand Five Hundred) from the pensionary Page No.# 4/11 benefits of her husband. 4. I have heard the learned counsel for the parties and also perused the materials available on record. 5. It is seen from the materials brought on record that at the time of entry into the service although basing on a wrong calculation, the date of superannuation of the petitioner was recorded in his service book as 31-03-2019 although basing on the matriculation certificate of the husband of the petitioner his date of birth was 01-03-1956 and he was to retire from his services w.e.f. 31-03-2016. The materials brought on record does not reveal that the husband of the petitioner, herein, had in any manner suppressed any factual details from the respondents pertaining to his date of birth. The date of birth of the husband of the petitioner as recorded in his service book at the time of entry into the service as 01-03-1959 was so recorded by the respondent authorities basing on the documents produced by the husband of the petitioner, herein. It is found that the husband of the petitioner continued to render his services with his date of birth as 01-03- 1959 and he was also superannuated from his services w.e.f. 31-03-2019 basing on the said date of birth. The respondent authorities although had the requisite materials before it, had not proceeded to rectify the date of birth of the petitioner as recorded in his service book till the date of his superannuation, i.e. on 31-03-2019. No mis-representation of fraud is found to have committed in the matter by the husband of the petitioner. The overstay in service by the petitioner’s husband is found to have so occasioned on account of wrong computation of his date of birth by the respondent basing on his matriculation certificate which was duly produced by the husband of the petitioner. Page No.# 5/11 6. It is a settled position of law that excess payment occasioning on account of wrong calculation made by the employer which is subsequently found to be erroneous, recovery of excess payment of salaries drawn on account of overstay has been held to be iniquitous. 7. 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 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 Page No.# 6/11 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." 8. 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 the employees had subsequently retired from their services. The 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 bona fide 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, Page No.# 7/11 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.” 9. 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 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, summarise 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 Page No.# 8/11 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 the employer's right to recover." 10. 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 Page No.# 9/11 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 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 Page No.# 10/11 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.” 11. Applying the decisions of the Hon’ble Supreme Court noticed hereinabove to the facts involved in the present proceeding, this Court is of the considered view that recovery made from the pension and pensionary benefits of the husband of the petitioner is clearly iniquitous, harsh and arbitrary and accordingly, the said recovery would not be permissible to be made. 12. In view of the above discussions, the recovery of an amount of Rs. 18,37,500/- made from the pension and pensionary benefits of the husband of the petitioner being already held to be iniquitous, harsh and arbitrary, this Court is of the view that the Page No.# 11/11 respondent authorities are now required to release the said amount to the petitioner, herein. Accordingly, it is directed that the respondent authorities shall release the amount of Rs. 18,37,500/- to the petitioner within a period of 01 (one) months from the date of receipt of a certified copy of this order. It is clarified that the petitioner’s husband having received his salaries w.e.f. 01-04-2016 to 30-04-2019, it is provided that while pension of the husband of the petitioner shall be computed as on 01-04-2016, however, the arrears thereof would be receivable by him only w.e.f. 01-05-2019. 13. With the above observations and directions, the present writ petition stands disposed of. JUDGE Comparing Assistant