Page No.# 1/7 vs The State Of Assam And 5 Ors
2025 Latest Caselaw 2845 Gua

Gauhati High Court

Page No.# 1/7 vs The State Of Assam And 5 Ors on 5 February, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                   Page No.# 1/7

GAHC010218412018




                                                            2025:GAU-AS:1231

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

                        Case No. : WP(C)/6808/2018

         ON THE DEATH OF BIJAN LAL CHOUDHURY, HIS WIFE, REKHA
         CHOUDHURY,
         WIFE OF LATE BIJAN LAL CHOUDHURY, R/O- H.NO. 3, BYE LANE NO 4,
         NATUN SARANIA, GANDHI BASTI, CHANDMARI, GHY-3, DIST- KAMRUP
         (M), ASSAM



         VERSUS

         THE STATE OF ASSAM AND 5 ORS.
         REP. BY THE CHIEF SECY. TO THE GOVT. OF ASSAM, FINANCE DEPTT.,
         ASSAM SACHIBALAYA, DISPUR, GHY-6

         2:THE REGISTRAR GENERAL
          GAUHATI HIGH COURT
          GHY-1

         3:THE PRINCIPAL ACCOUNTANT GENERAL
          OFFICE OF THE ACCOUNTANT GENERAL (A AND E)
         ASSAM
          MAIDAMGAON
          BELTOLA
          GHY-29

         4:THE JOINT SECY. TO THE GOVT. OF ASSAM
          JUDICIAL DEPTT.
          DISPUR
          GHY-6

         5:THE TREASURY OFFICER
          KAMRUP (M)
          GHY-1
                                                                      Page No.# 2/7

            6:THE SENIOR ACCOUNTS OFFICER
             OFFICE OF THE ACCOUNTANT GENERAL (A AND E)
            ASSAM
             MAIDAMGAON
             BELTOLA
             GHY-2



For the Petitioner(s)       : Ms. G. Goswami, Advocate


For the Respondent(s)       : Mr. T.J. Mahanta, Sr. Advocate
                             Mr. C. Baruah, Standing Counsel


Date of Hearing                           : 05.02.2025
Date of Judgment                          : 05.02.2025




                                       BEFORE
                        HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                              JUDGMENT AND ORDER (ORAL)

Heard Ms. G. Goswami, the learned counsel appearing on behalf of the petitioner. Mr. T.J. Mahanta, the learned Senior Standing Counsel appears on behalf of the respondent No. 2 and Mr. C. Baruah, the learned Standing Counsel appears on behalf of the respondent Nos. 3 and 6.

2. None appears on behalf of the Finance Department of the Government of Assam when the matter is called. In addition to that, the learned counsel for respondent Nos. 4 and 5 is also not present when the matter is called.

Page No.# 3/7

3. The present writ petition has been filed challenging the communication dated 02.07.2018 issued by respondent No. 6 to the Register General of the Gauhati High Court whereby it has been stated that the pay in respect to the petitioner was wrongly fixed at Rs.6,850/- instead of Rs.6,600/- on 01.01.1996 by allowing 2(two) increments as weightage for fixation of pay on revise scale instead of admissible 1 (one) increment as weightage since his pay scale was Rs.5,375-10,700/- (the maximum pay of the scale is more than Rs.9,725/- as such 1(one) increment as weightage is admissible at the time of fixation of pay on 01.01.1996) and on 01.01.2006 his revise pay should have been fixed at Rs. 23,390/- instead of Rs. 23,990/-. It was further mentioned that at the time of retirement his pay ought to have been Rs.32,260/- instead of Rs.33,330/- as allowed by the Department. Accordingly, it was observed in the said communication that the resultant overpayment be calculated and intimated to the said office by means of a due and drawn statement to adjust the same from pensionery benefits and the overdrawal amount be shown in the Column No. (b) of Form No. 19 for adjustment.

4. The said communication has been challenged on the ground that the said communication goes contrary to the law laid down by the Supreme Court in the case of State of Punjab & Others Vs. Rafiq Masih (White Washer) & Others reported in (2015) 4 SCC 334. For the purpose of ascertaining the legality of the

challenge made to the impugned communication dated 02.07.2018, it is relevant to take note of that the petitioner herein retired from his service on 31.01.2013 after 39 (thirty nine) years of continuous service and the pension payment order was issued by the office of the respondent No. 3 wherein the date of commencement of the pension was fixed on 01.02.2013. Subsequent thereto, Page No.# 4/7

the petitioner unfortunately expired on 08.02.2022 during the pendency of the writ petition and the present proceedings are now being continued through his wife who is a beneficiary of the family pension.

5. Ms. G. Goswami, the learned counsel appearing on behalf of the petitioner submitted that the law in that regard is quite clear as laid down by the Supreme Court in the case of Rafiq Masih (White Washer) (supra), wherein it has been categorically mentioned in paragraph Nos. 17 and 18 as to when recovery is not permissible. This Court, during the course of the hearing had asked the learned counsels appearing on behalf of the respondents who are duly represented as to whether the petitioner had any role in the fixation of the salary which resulted in certain excess payment. The learned counsels appearing on behalf of the respondents who are duly represented submitted that the salaries were fixed by the Competent Authority. It was also stated that the petitioner had no role in doing so.

6. Taking into account the said submission, this Court finds it relevant to take note of paragraph Nos. 17 and 18 of the judgment in the case of Rafiq Masih (White Washer) (supra), which is reproduced herein under:

"17. Last of all, reference may be made to the decision in Sahib Ram v. Union of India wherein it was concluded as under: (SCC pp. 19-20, paras 4-5) "4. Mr Prem Malhotra, learned counsel for the appellant, contended that the previous scale of Rs 220-550 to which the appellant was entitled became Rs 700-1600 since the appellant had been granted that scale of pay in relaxation of the educational qualification. The High Court was, therefore, not right in dismissing the writ petition. We do not find any Page No.# 5/7

force in this contention. It is seen that the Government in consultation with the University Grants Commission had revised the pay scale of a Librarian working in the colleges to Rs 700-1600 but they insisted upon the minimum educational qualification of first or second class MA, MSc, MCom plus a first or second class BLib Science or a Diploma in Library Science. The relaxation given was only as regards obtaining first or second class in the prescribed educational qualification but not relaxation in the educational qualification itself.

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."

(emphasis supplied) It would be pertinent to mention, that Librarians were equated with Lecturers, for the grant of the pay scale of Rs 700-1600. The above pay parity would extend to Librarians, subject to the condition that they possessed the prescribed minimum e ducational qualification (first or second class MA, MSc, MCom plus a first or second class BLib Science or a diploma in Library Science, the degree of MLib Science being a preferential qualification). For those Librarians appointed prior to 3-12-1972, the educational qualifications were relaxed. In Sahib Ram case, a mistake was committed by wrongly extending to the appellants the revised pay scale, by relaxing the prescribed educational qualifications, even though the appellants concerned were I Page No.# 6/7

neligible for the same. The appellants concerned were held not eligible for the higher scale, by applying the principle of "equal pay for equal work". This Court, in the above circumstances, did not allow the recovery of the excess payment. This was apparently done because this Court felt that the employees were entitled to wages, for the post against which they had discharged their duties. In the above view of the matter, we are of the opinion, that it would be iniquitous and arbitrary for an employer to require an employee to refund the wages of a higher post, against which he had wrongfully been permitted to work, though he should have rightfully been required to work against an inferior post.

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 r eferred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i) 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 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."

7. From a perusal of the above quoted paragraphs of the judgment, it is seen and more particularly, paragraph 18 (ii), that the recovery from retired Page No.# 7/7

employees or employees who are due to retire within one year of the order of recovery is not permissible. In the instant case, it is seen that after the retirement of the petitioner on 31.01.2013, the impugned communication was passed on 02.07.2018 and thereby a recovery was sought to be made. The same in the opinion of this Court goes contrary to the judgment of the Supreme Court in the case of Rafiq Masih (White Washer) (supra) and accordingly the impugned communication dated 02.07.2018 is interfered with insofar as the recovery of the excess amount from the petitioner is concerned. However, it is clearly observed that post 02.07.2018, the entitlement of the original petitioner to pension and the entitlement to the substituted petitioner for family pension would only be as per his/her actual entitlement and not on the erroneous fixation of salary. It is made clear that there shall be no recovery made for the period prior to 02.07.2018 on the basis of the wrong fixation of salary.

8. With the above observations and directions the instant writ petitions stands disposed of.

JUDGE

Comparing Assistant