Chandra Swargiary vs The State Of Assam And 5 Ors
2021 Latest Caselaw 916 Gua

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GAHC010030062021




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : WP(C)/1058/2021

            CHANDRA SWARGIARY
            S/O LATE DABLA SWARGIARY, R/O THAIKARAKUCHI, P.O. SATHISAMAKA,
            DIST. BAKSA, ASSAM, PIN 781355

            VERSUS

            THE STATE OF ASSAM AND 5 ORS
            REPRESENTED BY THE COMMISSIONER AND SECY. TO THE GOVT. OF
            ASSAM, EDUCATION (SECONDARY) DEPTT., DISPUR, GUWAHATI 781006

            2:THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM
             FINANCE DEPTT.
             DISPUR
             GUWAHATI 781006

            3:THE DIRECTOR OF SECONDARY EDUCATION
             BTC KOKRAJHAR ASSAM PIN 783370

            4:THE DIRECTOR OF PENSION
            ASSAM HOUSEFED COMPLEX
             GUWAHATI 781006

            5:THE INSPECTOR OF SCHOOL
             BAKSA P.O. MUSHAPUR
             DIST. BAKSA ASSAM PIN 781372

            6:THE DEPUTY INSPECTOR OF SCHOOLS
             BAKSA P.O. MUSHALPUR
             DIST. BAKSA ASSAM
             PIN 78137

Advocate for the Petitioner   : MR. M ISLAM

Advocate for the Respondent : GA, ASSAM
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                                BEFORE
              HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

                                         ORDER

Date : 10.03.2021

Heard Ms. R. Baruah, learned counsel for the petitioner, who submits that the petitioner, who retired as an Assistant Teacher of Hirimba Bodo High School on 31.01.2019, has not been paid his pension and other retiral benefits, due to his alleged excess drawal of pay on the basis of wrong fixation of pay made by the respondents.

The petitioner's counsel submits that the petitioner had no role to play in the fixation of the petitioner's pay and as such, there could not have been any fraud on the part of the petitioner in making of the wrong fixation of his pay. Further, it is not the case of the respondents that there had been any misrepresentation on the part of the petitioner due to which the wrong fixation of pay had occurred. She accordingly submits that the respondents should not be allowed to recover the alleged excess drawal of pay, as the same is not allowed in terms of the judgment of the Apex Court in the case of State of Punjab -vs- Rafiq Masih, reported in (2015) 4 SCC 334.

Mr. R. Borpujari, learned counsel appearing for the Finance Department, Mr. U. Sarma, learned counsel appearing for the respondent No. 1, Ms. R. B. Bora, learned counsel appearing for the respondent Nos. 5 and 6 and Mr. D. Nath, learned counsel appearing for the respondent No. 4 submit that an Assistant Teacher is Class-III employee and that the present case is covered by the judgment of the Apex Court.

I have heard the learned counsels for the parties.

As the Apex Court in the case of State of Punjab -vs- Rafiq Masih (supra) has held that there can be no recovery of excess pay in respect of Grade-III and Grade-IV employees, the respondents cannot be allowed to recover the alleged excess pay, which is reflected in the statement of excess drawal of salary made by the office of the Head Master, Hirimba Bodo High School (Annexure-3). Further, the respondents are Page No.# 3/3

directed to process the pension and other retiral benefits of the petitioner, so that the same is made available to him within a period of 3 (three) months from the date of receipt of a certified copy of this order along with a copy of this writ petition.

This writ petition is accordingly disposed of.

JUDGE

Comparing Assistant