Gauhati High Court
Page No.# 1/5 vs The State Of Assam And 6 Ors on 12 August, 2025
Author: Nelson Sailo
Bench: Nelson Sailo
Page No.# 1/5
GAHC010088032024
2025:GAU-AS:10595
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2453/2024
JAHANARA ABEDIN
W/O LATE ABDUL AMTIN ALI, R/O VILL- KALDOBA PART-I, P.O.-AGOMONI,
P.S.-AGOMONI, DIST-DHUBRI, ASSAM, PIN-783335
VERSUS
THE STATE OF ASSAM AND 6 ORS
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF ASSAM,
DEPARTMENT OF SCHOOL EDUCATION, DISPUR, GUWAHATI-781006
2:THE SECRETARY GOVERNMENT OF ASSAM
FINANCE DEPARTMENT
DISPUR
GUWAHATI-781006
3:THE DIRECTOR ELEMENTARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI-781019
4:THE DIRECTOR OF PENSION
ASSAM
HOUSEFED COMPLEX
DISPUR
GUWAHATI-781006
5:THE DISTRICT ELEMENTARY EDUCATION OFFICER
DHUBRI
P.O. AND P.S.-DHUBRI
DIST-DHUBRI
ASSAM
PIN-783301
Page No.# 2/5
6:THE DEPUTY INSPECTOR OF SCHOOLS
DHUBRI
P.O. AND P.S.-DHUBRI
DIST-DHUBRI
ASSAM
PIN-783301
7:THE BLOCK ELEMENTARY EDUCATION OFFICER
AGOMONI
P.O. AND P.S.-AGOMONI
DIST- DHUBRI
ASSAM
PIN-78333
Advocate for the Petitioner : MR. R ISLAM, MR G U AHMED
Advocate for the Respondent : SC, ELEM. EDU, GA, ASSAM,SC, FINANCE
BEFORE
HON'BLE MR. JUSTICE NELSON SAILO
O R D E R
12.08.2025
Heard Mr. R. Islam, learned counsel for the petitioner, Ms. B. Deka,
learned Standing Counsel, Elementary Education Department for the
respondent Nos. 1, 3, 5, 6 & 7, Ms. R.M. Barua, learned Standing Counsel,
Finance Department for the respondent No.2 and Ms. D.D Barman,
learned Additional Senior Government Advocate for the respondent No.4.
2. Having regard to the nature of the case projected by the petitioner
and the issue involved, the writ petition is taken up for disposal at this
stage.
3. Brief facts essential for disposal of this writ petition is that the
petitioner joined service as a Stipendiary Teacher of Shernagar L.P School
on 26.02.1974 and her service was regularized w.e.f. 01.12.1974.
Subsequently, she was confirmed in service on 03.08.1989 as an Assistant
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Teacher. Consequently, the petitioner retired on 30.04.2017 as Head
Teacher. Although the respondent No.6 submitted the pension papers and
proposal along with all related documents to the respondent No.4 for
finalization of regular pension and other pensionery benefits entitled to
the petitioner, but on scrutiny it was detected that there was an excess
drawal of Rs.3,62,248/- on account of wrong fixation of pay. It is for this
reason that the pension case of the petitioner could not be finalized and
aggrieved, the petitioner is before this Court.
4. Learned counsel for the petitioner submits that according to the
respondent authorities, the pay of the petitioner was wrongly fixed at
Rs.1685/- instead of Rs.1555/- as on 01.01.1989 and on account of such
wrong fixation, the excess drawal of pay had occurred. The learned
counsel further submits that excess drawal is not attributable to any
misrepresentation or fraud on the part of the petitioner and it was solely
on account of some mistake committed by the authorities while fixing the
pay of the petitioner and therefore, in view of the Apex Court's decision in
State of Punjab and others -vs- Rafiq Masih (White Washer) and others ,
reported in (2015) 4 SCC 334, the excess amount drawn by the petitioner
should not be recovered from her and should be waived for finalization of
her pension and other benefits. Learned counsel for the petitioner also
submits that the Deputy Inspector of Schools, Dhubri in his letter dated
11.08.2021 (Annexure-I) to the Director of Elementary Education, Assam
had clearly stated that the excess drawal was not attributed to any fault
on the part of the petitioner. Learned counsel for the petitioner thus
submits that the writ petition may be allowed as prayed for.
5. Per-contra, Ms. D.D Barman, learned Additional Senior Government
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Advocate has drawn the attention of this Court to the Notification dated
27.01.2022 (Annexure-J), wherein it has been provided that the Pension
and Public Grievance Department is empowered to waive recovery with a
financial ceiling of Rs.1,00,000/- and beyond Rs.1,00,000/-, the express
approval of the Finance Department is to be obtained. However, it also
provides that in terms of the Cabinet decision dated 28.10.2021, the
Director of Pension has been authorized to waive excess drawal up to
Rs.3,00,000/- in respect of provincialised school teachers and PRIs
exclusively with the condition summarized by the Apex Court in Rafiq
Masih (White Washer) and others (supra). She submits that since the
amount in the instant case is beyond Rs.3,00,000/-, the approval of the
Finance Department will have to be sought. Similar submissions have been
made by Ms. R.M. Barua, learned Standing Counsel, Finance Department
and Ms. B. Deka, learned Standing Counsel, Elementary Education
Department.
6. I have considered the submissions made by the learned counsel for
the rival parties and perused the materials available on record.
7. The communication dated 11.08.2021 made by the Deputy Inspector
of Schools, Dhubri to the Director of Elementary Education, Assam
importantly certifies that the excess drawal that has occasioned is not
attributable to any misrepresentation or fraud etc., on the part of the
petitioner. The Apex Court in Rafiq Masih (White Washer) and others
(supra) postulates as many as five situations under which recovery of
excess drawal would be impermissible as can be seen from the paragraph-
18 of the said judgment. Paragraph-18(i) provides that it would be
impermissible to made recoveries from employees belonging to Class-III
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and Class-IV service or Group-C and Group-D service, where payment has
mistakenly been made by the employer in excess of their entitlement. As
already noticed, the Deputy Inspector of Schools, Dhubri had clearly
certified that the petitioner is not responsible for such wrong fixation of
pay. The Apex Court's decision also does not fix a ceiling for waiving such
excess drawal.
8. Under the circumstances, the decision of the Apex Court being
squarely applicable to the petitioner, this Court is of the considered view
that the amount of Rs.3,26,248/- said to be excess drawal will not be
recoverable from the petitioner.
9. It is ordered accordingly.
10. The respondents will however be at liberty to re-fix the pay of the
petitioner for finalization of pension. Such process be undertaken and
completed as expeditiously as possible, but within the outer limit of two
months from the date of receipt of a certified copy of this order.
11. The writ petition is accordingly disposed of as allowed. No cost.
JUDGE
Comparing Assistant
