Gauhati High Court
Mahodar Kalita vs The State Of Assam And 8 Ors on 4 March, 2021
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GAHC010096772020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2873/2020
MAHODAR KALITA
S/O LT. PRANHARI KALITA, R/O VILL. AND P.O. DEBACHARA, DIST.
BAKSA, PIN-781333
VERSUS
THE STATE OF ASSAM AND 8 ORS
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
EDUCATION DEPTT. DISPUR, GUWAHATI, KAMRUP (M), ASSAM, PIN-
781006
2:THE COMMISSIONER AND SECRETARY
FINANCE DEPTT. DISPUR
GUWAHATI-781006
3:THE SECRETARY
EDUCATION BODOLAND TERITORIAL COUNCIL
KOKRAJHAR
DIST KOKRAJHAR
PIN-783370
4:THE DIRECTOR OF ELEMENTARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI
KAMRUP (M)
ASSAM
PIN-781019
5:DIRECTOR OF EDUCATION
BODOLAND TREITORIAL COUNCIL
KOKRAJHAR
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ASSAM
PIN-783370
6:THE DIRECTORATE OF PENSION
GOVT. OF ASSAM
HOUSEFED COMPLEX
DISPUR
GUWAHATI
KAMRUP (M)
ASSAM
PIN-781006
7:THE DISTRICT ELEMENTARY EDUCATION OFFICER
BAKSA
DIST. CIRCLE MUSHALPUR
PIN-781372
8:THE INSPECTOR OF SCHOOLS
BAKSA
DIST. CIRCLE MUSHALPUR
PIN-781372
9:THE TREASURY OFFICER
BAKSHA
BTAD
MUSHALPUR
PIN-78137
Advocate for the Petitioner : MR. N BARMAN
Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
JUDGMENT
Date : 04-03-2021
Heard Mr. N. Barman, learned counsel for the petitioner. Also heard Ms. N. Phukan,
learned counsel for the respondents No. 1 & 4, Mr. P. Nayak, learned counsel for the respondents
No. 2, 3, 5, 7, 8 and 9 and Mr. S.R. Barua, learned counsel for the respondent No.6.
2. The petitioner who was working as a Subject Teacher of Nehru Anchalik M.E. School in the
district of Baksa, BTAD, Assam retired from service on attaining the age of superannuation on
31/07/2019. After his retirement, when the matter was processed for payment of his pensionery
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benefits, the communication dated 03.03.2020 of the Finance and Accounts Officer in the office of the
Directorate of Pension, Assam was made addressed to the Inspector of Schools, Baksa, by which, it
was provided that during his service tenure, the petitioner was paid a salary higher than his actual
scale. Accordingly, by the said communication, the Inspector of Schools, Dhubri, Assam was required
to do the needful.
3. The said communication has been assailed in this writ petition on the ground that as per the
law laid down by the Hon'ble Supreme Court, recovery from the pensionery benefits cannot be made
in respect of any salary that was paid to an employee during his service period for no fault of his own.
4. In the communication of 03.03.2020, it is noticed that there is no such conclusion of the
Finance and Accounts Officer in the office of the Directorate of Pension, Assam that the excess salary
was paid to the petitioner because of any fault of his or because of any overt act on his part, which
had contributed to such payment of excess salary. In the absence of any such material, it cannot be
concluded whether the excess salary was paid to the petitioner because of any fault of his.
5. The law in this respect has been settled by the Hon'ble Supreme Court in Shyam Babu Verma
and others -vs- Union of India and others , reported in (1994) 2 SCC 521 and State of Punjab and
Others -vs- Rafiq Masih (White Washer) and others , reported in (2015) 4 SCC 334, wherein it had
been held that in the event an excess salary is paid to an employee during his/her service tenure
because of no fault of his/her, such excess payment cannot be recovered from the retirement benefits.
6. The aforesaid provisions of law would squarely be applicable to the facts of this case and as
such, the recovery sought to the made by the communication of 03.03.2020 would not sustainable in
its present form. However, as no material has been produced before this Court as to whether the
excess salary was paid to the petitioner because of any overt act of the petitioner, this Court deems it
appropriate that the ends of justice would be met if the authorities in the Pension Department make
an assessment as to whether there was any contribution on the part of the petitioner in receiving such
excess salary during his service tenure. In the event, if it is found that there was no such contribution
from the petitioner leading to such excess payment, the authorities shall not insist upon the recovery
in view of the law laid down by the Hon'ble Supreme Court as indicated above.
7. Further, in the event, the authorities arrive at a situation where the excess payment can no
longer be recovered from the pensionery benefits; the authorities shall consider and process the
payment of pension to the petitioner as per law.
8. However, as submitted by Mr. P. Nayak, learned Standing Counsel for the Finance Department,
it is provided that the correct pay of the petitioner would be Rs.525/- instead of Rs.537/- per month.
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Accordingly, the authorities shall proceed with the payment of pension by taking into account the
correct pay that the petitioner ought to have received and not the incorrect higher pay that was paid
to her.
9. The pension papers of the petitioner was also returned back for the reason that the service
regularization order of the petitioner was required by Pension Department. In view of such
requirement, the petitioner to provide the pension department with copies of the orders of
regularization that may have been passed in his favour earlier. The petitioner shall provide it to the
Inspector of Schools, Baksa who shall forward it to the Director of Pension.
10. The aforesaid exercise be done within a period of two months from the date of receipt of a
certified copy of this judgment and order.
11. In terms of the above, the writ petition stands disposed of.
JUDGE
Comparing Assistant
