Page No.# 1/7 vs The State Of Assam And 6 Ors
2025 Latest Caselaw 7729 Gua

Gauhati High Court

Page No.# 1/7 vs The State Of Assam And 6 Ors on 13 October, 2025

                                                             Page No.# 1/7

GAHC010169622024




                                                       2025:GAU-AS:13623

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

                          Case No. : WP(C)/4265/2024

         AMINA KHATUN
         W/O- LATE ABDUL JALIL,
         VILLAGE- ALOMGANJ PART I,
         P.O- ALOMGANJ,
         DIST- DHUBRI, ASSAM, PIN-783339

         VERSUS

         THE STATE OF ASSAM AND 6 ORS
         REPRESENTED BY THE COMMISSIONER AND SECRETARY, TO THE GOVT.
         OF ASSAM, SECONDARY EDUCATION DEPARTMENT, DISPUR, GUWAHATI-
         781006

         2:THE COMMISSIONER AND SECRETARY
         TO THE GOVERNMENT OF ASSAM
          FINANCE DEPARTMENT
          DISPUR
          GUWAHATI- 781006
         ASSAM.

         3:THE DIRECTOR
          SECONDARY EDUCATION
         ASSAM
          KAHILIPARA
          GUWAHATI- 781019.

         4:THE DIRECTOR OF PENSION
         ASSAM
          HOUSEFED COMPLEX
          LAST GATE
         DISPUR
          GUWAHATI- 781006
         ASSAM.
                                                                           Page No.# 2/7

            5:THE FINANCE AND ACCOUNTS OFFICE
             DIRECTORATE OF PENSION
             DISPUR
             GUWAHATI- 781006
            ASSAM.

            6:THE INSPECTOR OF SCHOOLS
             DHUBRI DISTRICT CIRCLE
             DIST- DHUBRI
            ASSAM
             PIN-783301

            7:HEAD MASTER OF PANBARI RANGAMATI HIGH SCHOOL
             P.O- RANGAMATI VIA ALOMGANJ
             DIST-DHUBRI
            ASSAM
             PIN-78333

Advocate for the Petitioner   : MR. P K DEKA, MR. P DAIMARY,MR. R. KARIM,MS. N M
LONGKENG

Advocate for the Respondent : SC, SEC. EDU., T TALUKDAR(R-7),S BEGUM(R-7),MR. R
ISLAM (R-7),GA, ASSAM


                                   BEFORE
                      HONOURABLE MR. JUSTICE ROBIN PHUKAN
                                   ORDER

13.10.2025

Heard Mr. P.K. Deka, learned counsel for the petitioner; Ms. H. Terangpi, learned standing counsel for the respondent Nos. 1, 3 & 6; Mr. A. Chaliha, learned standing counsel for the respondent No. 2; Ms. D.D. Barman, learned Senior Government Advocate for the respondent Nos. 4 & 5; Mr. R. Islam, learned counsel for the respondent No. 7.

2. In this petition, under Article 226 of the Constitution of India, the petitioner has prayed for issuing direction to the respondent authorities not to deduct/recover the excess drawal of Rs. 56,713/- from the pensionary benefit of her deceased husband oand also to direct the respondent authorities to Page No.# 3/7

regularize her family pension.

3. Mr. Deka, learned counsel for the petitioner submits that late Abdul Jalil, the deceased husband of the petitioner, was serving as an Assistant Teacher of Panbari Rangamati High School, Dhubri and he retired from service on 31.08.2019 and died on 27.01.2024.

3.1. Mr. Deka further submits that after his retirement, the respondent No. 5, the Finance and Accounts Office, Directorate of Pension, had raised allegation of overdrawal of salary, on 08.07.2022 and consequently, returned his pension papers to the respondent No. 7, for taking necessary actions. Thereafter, the respondent No. 7 had issued an impugned recovery statement that there is excess drawal of sum of Rs. 56,713/- in favour of the petitioner's deceased husband. But, according to Mr. Deka, such alleged excess drawal had in no manner occasioned for the fault of the deceased husband of the petitioner and that on the aforesaid count, the pensionary benefits of the deceased husband of the petitioner have not been regularized and as a result, the petitioner is also deprived of getting her family pension.

3.2. Mr. Deka also submits that in case of wrong fixation of pay scale, wherein the employee has no fault, there should not be any recovery of excess amount in view of the decision of Hon'ble Supreme Court in the case of State of Punjab & Others vs. Rafiq Masih (White Washer), reported in (2015) 4 SCC 334. Under such circumstances, Mr. Deka has contended to allow this petition by directing the respondent authorities not to deduct the excess drawal amount from the pensionary benefit of the deceased husband of the petitioner and if the same has already been deducted, then the same shall be returned to the petitioner and also to direct the respondent authorities to regularized the Page No.# 4/7

family pension of the petitioner.

4. Per-contra, Mr. Islam, learned counsel for the respondent No. 7 submits that the Headmaster of Panbari Rangamati High School, Dhubri, has filed an affidavit-in-opposition, wherein it is stated that while making calculation, in respect of pay and allowances of the petitioner's husband, the erstwhile Headmaster of the school had committed some mistake and the correct calculation is reflected in the affidavit as under:-

Pre-revised Basic Pay as on Rs. 16,410.00/-

       01.03.2016
       Revised Basic         Pay     as    on Rs. 43,650.00/-
       01.04.2016
       3% annual increment as on Rs. 43,650.00/-
       01.07.2016,      i.e.     Rs. + Rs. 1310.00
       1309.50/- say, Rs. 1310.00/-
                                     = Rs. 44,960.00/-
       3%   ACPS   benefit   as   on Rs. 44,960.00/-
       01.10.2016,      i.e.     Rs. + Rs. 1350.00
       1348.80/-, say Rs. 1390.00/-
                                     = Rs. 46,310.00/-
       3% annual increment as on Rs. 46,310.00/-
       01.07.2017,      i.e.     Rs. + Rs. 1390.00
       1389.30/- say, Rs. 1390.00/-
                                     = Rs. 47,700.00/-
       3% annual increment as on Rs. 47,700.00/-
       01.07.2018,      i.e.     Rs. + Rs. 1440.00
       1431.00/- say, Rs. 1440.00/-
                                     = Rs. 49,140.00/-
       3% annual increment as on Rs. 49,140.00/-
       01.07.2019,      i.e.     Rs. + Rs. 1480.00
       1474.20/- say, Rs. 1480.00/-
                                     = Rs. 50,620.00/-
                                                                       Page No.# 5/7

4.1. As such, Mr. Islam submits that he has no objection in the event of granting reliefs as prayed for by the petitioner and that in view of the aforesaid calculation, there is no question of overdrawal in favour of the deceased husband of the petitioner.

5. On the other hand, Ms. Terangpi, learned standing counsel for the respondent Nos. 1, 3 & 6; Mr. Chaliha, learned standing counsel for the respondent No. 2; and Ms. Barman, learned Senior Government Advocate for the respondent Nos. 4 & 5 submit that this writ petition may be disposed of in view of the decision of Hon'ble Supreme Court in the case of Rafiq Masih (Supra) and also in view of the affidavit filed by the respondent No. 7

6. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the petition as well as the documents placed on record and also perused the decision of Hon'ble Supreme Court in the case of Rafiq Masih (Supra).

7. The basic facts herein this petition are not in dispute. The deceased husband of the petitioner, namely Abdul Jalil was serving as an Assistant Teacher of Panbari Rangamati High School, Dhubri and he retired from service on 31.08.2019 and died on 27.01.2024 and his family pension has not yet been settled on account of the letter dated 10.10.2023 (Annexure - 13), issued by the respondent No. 5, wherein it is stated that there is excess drawal of sum of Rs. 56,713/- by the deceased husband of the petitioner.

8. However, from the affidavit-in-opposition, filed by the respondent No. 7, it appears that the erstwhile Headmaster of the aforesaid school had committed some mistake in calculating the pay and allowance of the deceased husband of the petitioner and the correct statement of his salary is already mentioned Page No.# 6/7

herein above and from the aforementioned calculation, it is clear that the basic pay of the deceased husband of the petitioner was Rs. 50,620/- as on 01.07.2019, not Rs. 49,140/- as calculated and entered by the erstwhile Headmaster and as such, there is no question of any overdrawal by the deceased husband of the petitioner.

9. It is also to be noted here that in the case of Rafiq Masih (Supra), Hon'ble Supreme Court has held that recovery of the excess drawal from the retired employee is impressible, in view of the point No. (ii) of paragraph No. 18 of the said judgment.

9.1. The relevant portion of paragraph No. 18 of the said judgment is reproduced herein below:-

"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 referred to herein above, 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.

Page No.# 7/7

(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."

10. Under the given factual and legal matrix, especially in view of the admitted error in calculation of the pay and allowances of the deceased husband of the petitioner, by the respondent No. 7 in his affidavit-in-opposition, this Court is inclined to dispose of this petition by directing the respondent authorities, more particularly the respondent Nos. 3 & 4 to settle the family pension of the petitioner within a period of 2 (two) months from the date of receipt of the certified copy of this order, without insisting upon recovery of the excess drawal amount, i.e. Rs. 56,713/-.

11. It is further provided that if the amount as indicated in Annexure No. 9, at page No. 27 of the petition, i.e. Rs. 56,713/-, had already been recovered, then the same shall be returned to the petitioner forthwith.

12. The petitioner shall obtain a certified copy of this order and place the same before the respondent authorities within a period of 1 (one) week from today.

JUDGE Comparing Assistant