Page No.# 1/6 vs The State Of Assam And 6 Ors
2021 Latest Caselaw 2557 Gua

                                                                   Page No.# 1/6

GAHC010061082021




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

                          Case No. : WP(C)/2358/2021

         KHALID AHMED SIDDIQUE AND 4 ORS
         S/O. ABDUL MUJIVE SDDIQUE, VILL. BOSLA, P.O. MARJAT KANDI, DIST.
         KARIMGANJ, PIN-788710.

         2: ABDUS SUKKUR TAPADAR
          S/O. ABDUL MAZID TAPADAR
         VILL. MOHAKAL
          P.O. MOHAKAL
          DIST. KARIMGANJ
         ASSAM
          PIN-788827.

         3: SYAD MUJIBUR RAHMAN
          S/O. MUHIBUR RAHMAN
         VILL. LAMAR KHELA
          P.O. MARZATKANDI
          DIST. KARIMGANJ
          PIN-788710.

         4: MANORATH DAS
          S/O. NAKUL CH. DAS
          R/O. SRIGAURI
          P.O. SRIGAURI
          DIST KARIMGANJ
          PIN-788806.

         5: KOMAR UDDIN CHOUDHURI

          S/O. LT. NOOR UDDIN CHOUDHURI
          VILL. DISHIRPAR
          P.O. BADARPUR
          DIST KARIMGANJ
          ASSAM
          PIN-78806
                                                                   Page No.# 2/6


            VERSUS


            THE STATE OF ASSAM AND 6 ORS
            REP. BY THE COMM. AND SECY., ELEMENTARY EDUCATION, DEPTT.
            DISPUR, GUWAHATI-06.


            2:THE COMMISSIONER AND SECY.
            TO THE GOVT. OF ASSAM FINANCE DEPTT.
             DISPUR
             GUWAHATI-06.


            3:THE COMMISSIONER AND SECY.

             PENSION AND PUBLIC GRIVANCES DEPTT.
             GHY.-06.


            4:THE DIRECTOR OF ELEMENTARY EDUCATION

             ASSAM
             GUWAHATI
             KAHILIPARA-19.


            5:THE DIRECTOR OF PENSION
             GOVT. OF ASSAM
             HOUSEFEED COMPLEX
             DISPUR
             GHY.-06.


            6:THE FINANCE AND ACCOUNT OFFICER
             DIRECTORATE OF PENSION
            ASSAM
             GUWAHATI.


            7:THE DEPUTY INSPECTOR OF SCHOOL

             DIST. KARIMGANJ
             ASSAM


Advocate for the Petitioner   : G UDDIN
                                                                       Page No.# 3/6


Advocate for the Respondent : GA, ASSAM




                                BEFORE
           HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

                                          ORDER

Date : 27-10-2021

It is taken note of that five writ petitioners have joined together to institute this common writ petition stating that it is against a common cause of action. As a common cause of action is related to the legal right of the individual petitioners and not on a common or similar issue and the petitioners having been five individual legal rights, it cannot be a case of common cause of action.

2. Consequently, we delete the petitioner Nos. 2, 3, 4 and 5 from the array of petitioner in the cause title and take up the matter only on behalf of the petitioner No.1 who had sworn the affidavit.

3. Heard G. Uddin, learned counsel for the petitioner. Also heard Mr. P.N. Sarma, learned counsel appearing for the respondents No.1, 4 and 7 being the authorities under the Elementary Education Department, Mr. B. Gogoi, learned counsel for the respondents No.2 & 6 being the Finance Department and Mr. S.R. Baruah, learned counsel for the respondents No.3 and 5 being the Pension Department.

4. The petitioner who was working as a Headmaster of 34 No. Bosla Boys L.P. School in the district of Karimganj, Assam retired from service on attaining the age of superannuation on 30/11/2016. After his retirement, when the matter Page No.# 4/6

was processed for payment of his pensionery benefits, the communication dated 20/06/2018 of the Finance and Accounts Officer in the office of the Directorate of Pension, Assam was made addressed to the Deputy Inspector of Schools, Karimganj, Assam, 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 Deputy Inspector of Schools, Karimganj, Assam was required to do the needful.

5. 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.

6. In the communication of 20/06/2018, 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.

7. 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.

Page No.# 5/6

8. 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 20/06/2018 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.

9. 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.

10. 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 him.

11. The aforesaid exercise be done within a period of 2 (two) months from the date of receipt of a certified copy of this judgment and order.

12. As the alleged excess salary claimed had already been paid by the petitioner, if in the exercise pursuant to this order, the authorities finds that the excess salary cannot be recovered, the same be refunded back to the petitioner within a period of three months from the date of receipt of the certified copy of Page No.# 6/6

the order.

13. In respect of the petitioner No.2, 3, 4 and 5, liberty is granted to approach again.

14. In terms of the above, the writ petition stands disposed of.

JUDGE

Comparing Assistant