Page No.# 1/15 vs The State Of Assam And 7 Ors
2025 Latest Caselaw 6913 Gua

Gauhati High Court

Page No.# 1/15 vs The State Of Assam And 7 Ors on 2 September, 2025

                                                             Page No.# 1/15

GAHC010289002023




                                                        2025:GAU-AS:11793

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

                       Case No. : WP(C)/7551/2023

         BAHARUL ISLAM
         S/O- LATE SOLEMAN ALI,
         VILLAGE- KHAKHARISAL,
         P.O.- KHAKHARISAL
         P.S.- MUKALMUA,
         DIST.- NALBARI, ASSAM.



         VERSUS

         THE STATE OF ASSAM AND 7 ORS
         TO BE REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
         GOVT. OF ASSAM,
         ELEMENTARY EDUCATION DEPARTMENT,
         ASSAM, DISPUR, GUWAHATI-6.

         2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
          FINANCE DEPARTMENT
         ASSAM
          DISPUR
          GUWAHATI-6.

         3:THE DIRECTOR OF ELEMENTARY EDUCATION
         ASSAM
          KAHILIPARA
          GUWAHATI- 19.

         4:THE DIRECTOR OF PENSION
         ASSAM
          HOUSEFED COMPLEX
          NEW BUILDING
          DISPUR-6.
                                                                       Page No.# 2/15

           5:THE DISTRICT ELEMENTARY EDUCATION OFFICER
            NALBARI DISTRICT
            P.O.
            P.S. AND DISTRICT- NALBARI

           ASSAM.

           6:THE DEPUTY INSPECTOR OF SCHOOLS
            NALBARI DISTRICT
            P.O.
            P.S. AND DISTRICT- NALBARI

           ASSAM.

           7:THE BLOCK ELEMENTARY EDUCATION OFFICER
            PASHIM NALBARI
            P.O.
            P.S. AND DISTRICT- NALBARI

           ASSAM.

           8:THE TREASURY OFFICER
            NALBARI
            P.O.
            P.S. AND DISTRICT- NALBARI

           ASSAM

Advocate for the Petitioner : MR. A M BARBHUIYA, S. M. ZINNA,MS S R
MAZARBHUIYA,MS A BEGUM

Advocate for the Respondent : SC, ELEM. EDU, SC, FINANCE,GA, ASSAM




           Linked Case : Cont.Cas(C)/130/2024

           BAHARUL ISLAM
           S/O LATE SOLEMAN ALI
           VILL- KHAKHARISAL
           P.O.-KHAKHARISAL
           P.S.-MUKALMUA
           DIST-NALBARI
           ASSAM
                                                                          Page No.# 3/15


           VERSUS

           BHABESH DEKA and ANR.
           THE DIRECTOR OF PENSION
           ASSAM
           HOUSEFED COMPLEX
           NEW BUILDING
           DISPUR-6

           2:BIKASH DAS
           THE DIRECTOR OF PENSION
           ASSAM
            HOUSEFED COMPLEX
            NEW BUILDING
            DISPUR-6
            ------------

Advocate for : MR. A M BARBHUIYA Advocate for : MR B DEURI-r2 appearing for BHABESH DEKA and ANR.

BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN

Advocate for the petitioner : Mr. A.M. Barbhuiya.

Advocate for the respondents : Mr. B. Kaushik, SC, Elem. Edu.

(R-1, 3, 5, 6 and 7);

Mr. A. Chaliha, SC, Finance (R-2 & 8);

Mr. B. Dewri, GA, Assam (R-4).

Date of hearing                     : 20.08.2025
Date of judgment                    : 02.09.2025



                              JUDGMENT & ORDER (CAV)

Heard Mr. A.M. Barbhuiya, learned counsel for the petitioner and Mr. B. Kaushik, learned standing counsel for the respondents in Elementary Education Department, being respondent No. 1, 3, 5, 6, & 7, Mr. A. Chaliha, learned Page No.# 4/15

standing counsel for the respondents in Finance Department, being respondent No. 2 & 8 and Mr. B. Dewri, learned Government Advocate for respondent No.4.

2. In this petition, under Article 226 of the Constitution of India, the petitioner has prayed for issuing direction to the respondent authorities to release the arrear pension of the petitioner from 01/02/2018 to 30/06/2021 by modifying the order dated 11/08/2023 (Annexure-6) passed by the Director of Pension, Assam.

3. It is to be noted here that the Director of Pension, Assam (Respondent No.

4) vide order dated 11/08/2023 granted the monthly pension to the petitioner w.e.f. 01/07/2021, only, instead of 01/02/2018.

4. The petitioner has also preferred one contempt petition, being Contempt Case (C) No. 130/2024, for wilful disobedience/violation of the judgment and order, dated 25/04/2023, passed by this Court in W.P.(C) No.1873/2022 and W.P. (C) No.4936/2021, wherein a Co-ordinate bench of this Court has issued following directions:-

"20. Consequently, this Court therefore disposes of both the writ

petition with the following observations and directions.

(i) The communication dated 13.09.2021 issued by the Block Element Education Officer is set aside and quashed.

(ii) The respondent authorities are directed not to make any recovery of the petitioner in any mode including from the retirement dues of petitioner, the amount of Rs.17,07,100/- which was computed to be excess payment drawn by the petitioner on account of overstay.

Page No.# 5/15

(iii)The respondent authorities are directed to fix the retirement benefit of the petitioner on the basis of the petitioner's actual date of superannuation i.e. on 30.01.2018 which is based upon the date of birth recorded in the HSLC certificate.

(iv) The respondent authorities including the Elementary Education Department and the Director of Pension are directed to immediately process the pension of the petitioner so that the petitioner receives his pension as well as all other pensionary benefits at the earliest. The exercise be completed within a period of 4 (four) months from the certified copy of the instant judgment and order is served upon the of Elementary Education as well as to the Director of Pension.

(v) This Court further directs that upon the formalities being completed by the Elementary Education Department as well as the Director of Pension, the concerned Treasury Officer shall do the needful so that the petitioner receives his arrear pension, regular pension as well as the pensionary benefits to which the petitioner is otherwise is entitled to.

5. The background facts, leading to filing of the present writ petition; are briefly stated as under:-

"The petitioner was initially appointed on 17/11/1999, as a

Stipendiary Teacher at Gadira L.P. School, Nalbari on fixed pay of Rs.900/-. Thereafter, on completion of Basic Training Course departmentally, he got regular scale of pay. Lastly, the petitioner was serving as Head Teacher at Mohbiyeni L.P. School, Nalbari.

The date of birth of petitioner, as per his HSLC Certificate dated Page No.# 6/15

11/06/1978 issued by the Board of Secondary Education, Assam, is 01/01/1958. He was supposed to be superannuated on 31/01/2018, on attaining the superannuation age of 60 years. But, the department, inadvertently over stayed him in service and let him retire only on 10/08/2021, by issuing the retirement notice, dated 10/08/2021, issued by the Block Elementary Education Officer, Paschim Nalbari of Nalbari District. Accordingly, the petitioner over stayed and served in the department from 01/02/2018 to 10/08/2021 and received salary all along from the department, except for the month of July and 10 (ten) days of August 2021.

Thereafter, the Block Elementary Education Officer, Paschim Nalbari of Nalbari District had issued a letter dated 13/09/2021 along with statements of alleged excess drawl for over stay/service to the petitioner that he has to recover/repay his salary of Rs.17,07,100/- (Rupees Seventeen Lakhs, Seven Thousand and One Hundred) only through the Treasury Challan for the period of his over stay/service in the department from 01/02/2018 to 30/06/2021, for preparation of pension etc. and declined to entertain and/or process the pension papers of the petitioner.

The petitioner then filed two writ petitions, being W.P.(C) No.4936/2021 and W.P.(C) No.1873/2022 before this Court for releasing his pension w.e.f. 01/02/2018 without deduction. Then this Court, vide order dated 25/04/2023, had disposed of the said two writ petitions directing the respondents not to recover salary from the petitioner which was drawn by him during the over stay period and to grant him pension and arrear pension from his actual date of Page No.# 7/15

retirement as on 31/01/2018.

That in compliance with judgment and order dated 25/04/2023 passed by this Hon'ble Court in W.P.(C) No. 1873/2022 and W.P.(C) No.4936/2021, no recovery was carried out from him for the aforesaid over stay period. But now, the Director of Pension, Assam vide order dated 11/08/2023, granted the monthly pension to the petitioner only w.e.f. 01/07/2021, instead of 01/02/2018. Thus, the petitioner is illegally denied his arrear pension from 01/02/2018 to 30/06/2021."

6. The Director of Pension (respondent No. 4.) has filed his affidavit-in- opposition. It stated in the said affidavit that in compliance of the order of this Court, dated 25/04/2023, passed in WP (C) No. 1873/2022, and as per the pension proposal submitted by the Deputy Inspector of Schools, Nalbari, vide letter No DIS/NAL/DP/2022-23/601 dated 20/06/2023., his office has finalized the pension case of the petitioner @ Rs. 11590/- w.e.f. 01/07/2021 and DCRG (death cum retirement gratuity) @ Rs. 3,38,958/-, vide PPO No. ADP/PPO/GPO/2023/088042, dated 11/08/2023, by taking into account the last basic pay as Rs. 32,190/- i.e. the last pay drawn by the pensioner on the actual date of retirement, i.e. on 30/01/2018, and without making recovery of the salary of Rs. 17,07,100/-, drawn by the petitioner for the overstay period w.e.f. 01/02/2018 to 30/06/2021, and other pensionary benefits, such as GIS, leave encashment etc. are not dealt by this Directorate and the concerned Head of Department has to deal with the same.

6.1. It is also stated that this Court, vide order dtd. 25/04/2023, passed in WP(C) No. 1873/2022, has specifically directed not to make recovery of Rs. 17,07,100/- from the retirement dues of the petitioner and fix the retirement benefits on the basis of the petitioner's actual date of superannuation i.e. Page No.# 8/15

30/01/2018. And accordingly, in pursuance of the direction of this Court the Pension & DCRG of the petitioner has been fixed on the basis of the petitioner's actual date of retirement i.e. 31/01/2018, as the petitioner had already drawn regular salary w.e.f. 01/02/2018 to 30/06/2021 and since the salary of the above stated period has already been drawn by the petitioner, the petitioner's regular pension has been granted w.e.f. 01.07.2021. It is also stated that in the judgement dated 25/04/2023, passed in WP(C) No. 1873/2022, at 12th line at page 6 (SL page 22 in aforesaid writ petition) it was held that "It is the further case of the petitioner that the petitioner is further entitled to the provisional pension from 01.02.2018 onwards but the petitioner was only granted the provisional pension from 01.03.2021 to 31.01.2022." And since the petitioner had already drawn the salary for the overstay period, therefore the issue of provisional pension, which is basically given to sustain until the regular pension is finalised, is unwarranted, since the petitioner was paid salary for the overstay period with all cumulative increment. Therefore, the petitioner has been given the pension fixing the pay as on the actual date of retirement i.e. 31/01/2018.

7. In the reply affidavit, the petitioner stated that his date of birth is 01/01/1958 as per his HSLC Certificate, dated 11/06/1978, issued by the Board of Secondary Education, Assam; and accordingly, he was supposed to be allowed to go on retirement on 31/01/2018, on attaining the superannuation age of 60 years. But, the department inadvertently overstayed him in service and let him retire only on 10/08/2021, as per the retirement notice, dated 10/08/2021, issued by the Block Elementary Education Officer, Paschim Nalbari of Nalbari District. Then he had overstayed and served in the department from 01/02/2018 to 10/08/2021 and received salary all along from the department, Page No.# 9/15

except for the month of July and 10 (ten) days of August 2021. Thereafter, he was also granted provisional pension with effect from 01/03/2021 as per order dated 11/02/2022 passed by the Deputy Inspector of Schools, Nalbari and subsequently, he was granted regular pension as usual in accordance with law. However, the respondent has not been paid his arrear pension from 01/02/2018 to 28/02/2021, ignoring the specific judgment and order dated 25/04/2023, passed by this Hon'ble Court in W.P.(C) No.1873/2022 and W.P.(C) No.4936/2021, wherein this Court had observed that the steps are also required to be taken against those erring officials for whose lack of diligence and vigilance it had led to overstay in service. This Court also observed in the order dated 07/03/2025 of the present writ proceeding that the stand taken by the Director is prima facie suggestive of contempt of court.

8. Mr. Barbhuiya, the learned counsel for the petitioner submits that due to lack of diligence of the respondent authorities, the petitioner had overstayed in service. Mr. Barbhuiya has pointed it out that date of birth of the petitioner is 01/01/1958, as per his HSLC Certificate, and he was supposed to be superannuated on 31/01/2018, at the age of 60 years. The department had let him retire only on 10/08/2021, as per notice, dated 10/08/2021, and the petitioner had overstayed and served in the department from 01/02/2018 to 10/08/2021 and received salary, except for the month of July and 10 (ten) days of August 2021. He was also granted provisional pension with effect from 01/03/2021, and subsequently, he was granted regular pension. But, his arrear pension from 01/02/2018 to 28/02/2021, has not been paid inspite of order dated 25/04/2023, in W.P.(C) No.1873/2022 and W.P.(C) No.4936/2021. Mr. Barbhuiya further submits that the Director of Pension, Assam vide order dated 11/08/2023, granted the monthly pension to the petitioner only w.e.f.

Page No.# 10/15

01/07/2021, instead of 01/02/2018 and illegally denied his arrear pension from 01/02/2018 to 30/06/2021 and therefore, it is contended to allow the petition.

9. Per contra, Mr. Dewri, the learned Government Advocate for the respondent No. 4 stated that as directed by this Court, the Pension & DCRG of the petitioner has been fixed on the basis of the petitioner's actual date of retirement i.e. 31/01/2018. Mr. Dewri also submits that as the petitioner had already drawn regular salary w.e.f 01/02/2018 to 30/06/2021, his regular pension has been granted w.e.f, 01.07.2021. And since the petitioner had already been paid salary for the overstayed period with all cumulative increment, he has been given the pension fixing the pay as on the actual date of retirement i.e. 31/01/2018, and that double benefit cannot be granted for the overstay period and that the petitioner is responsible for the overstay period as he could have informed the respondent authority about his date of superannuation. In support of his submission, Mr. Dewri has referred to a decision of this Court in WP(C) No. 2254/2023.

10. Having heard the submission of learned counsel for both the parties, I have carefully gone through the pleadings of the parties and also perused the decision referred by Mr. Dewri, the learned Government Advocate for respondent No. 4. Also, I have gone through the order dated 25/04/2023, in W.P.(C) No.1873/2022 and W.P.(C) No.4936/2021.

11. In view of the rival submission of learned counsel for the parties, the issue to be decided in this petition is formulated as under:-

(i) Whether the petitioner is entitled to pension for the overstay period i.e. from 01/02/2018 to 30/06/2021, while he had had already been paid salary for the said period with all cumulative increment?

Page No.# 11/15

12. It appears that the basic facts herein this case are not disputed. As per his HSLC Certificate, dated 11/06/1978, issued by the Board of Secondary Education, Assam, the date of birth of the petitioner is 01/01/1958. As such, he was supposed to superannuate on 31/01/2018 on attaining the age of 60 years. But, the department inadvertently overstayed him in service and let him retire only on 10/08/2021, by issuing retirement notice, dated 10/08/2021, by the Block Elementary Education Officer, Paschim Nalbari of Nalbari District. The petitioner then overstayed in service and served the department from 01/02/2018 to 10/08/2021. Accordingly, direction was issued by the respondent authority to make recovery of Rs. 17,07,100/- from the retirement dues of the petitioner.

13. The petitioner then challenged the said direction in W.P.(C) No.1873/2022 and W.P.(C) No.4936/2021. Then this Court vide order dated 25/04/2023, had directed not to recover the said amount. Thereafter, as per the pension proposal submitted by the Deputy Inspector of Schools, Nalbari, vide letter No DIS/NAL/DP/2022-23/601 dated 20/06/2023, the office of the respondent No. 4 has finalized the pension of the petitioner @ Rs. 11,590/- w.e.f 01/07/2021, and DCRG (death cum retirement gratuity) @ Rs. 3,38,958/-, vide PPO No. ADP/PPO/GPO/2023/088042, dtd. 11/08/2023 by taking in to account the last basic pay as Rs. 32,190/-, i.e., the last pay drawn by the pensioner on the actual date of retirement i.e. on 30/01/2018 and without making recovery of the salary of Rs. 17,07,100/- drawn by the petitioner for the overstay period w.e.f. 01/02/2018 to 30/06/2021.

14. In the order, dated 25/04/2023, so passed in W.P.(C) No.1873/2022 and W.P.(C) No.4936/2021, the directions issued are to fix the retirement benefit of the petitioner on the basis of the petitioner's actual date of superannuation i.e. Page No.# 12/15

on 30.01.2018, which is based upon the date of birth recorded in the HSLC certificate and it was also directed to immediately process the pension of the petitioner so that the petitioner receives his pension as well as all other pensionary benefits at the earliest, within a period of 4 (four) months from the certified copy of the judgment and order.

15. There was, however, no specific direction as to from which date the petitioner has to be paid the arrear pension and pensionary benefits. But, the logical corollary that can be drawn is that it should be from actual date of superannuation i.e. on 30.01.2018.

16. Further, from a perusal of the Annexure-6, correctness of which is being challenged in this petition, with a prayer for modification of the same, reveals that the petitioner has been granted the pension with effect from 01.07.2021. This letter was dated 11.08.2023, and the judgment and order was passed on 25.04.2023, and therefore, the direction in the order was carried out within the stipulated period.

16.1. The letter, (Annexure-6) reads as under :-

To, The Treasury Officer, Belsor Treasury,

Sir, I am to forward herewith P.O. No. ADP/PPO/GPO/2023/088042 in favour of Shri/Smti. Baharul Islam Retd. HT for @ Rs. 11590/-(Rupees Eleven Thousand Five Hundred Ninety only) p.m. w.e.f. 01/07/2021 onwards and to request that the pensioner's portion of the order may be made over to him/her after obtaining his/her signature on the Page No.# 13/15

disburser's portion after you have satisfied yourself of his/her identity and payments noted on both the portions as they are made. The slip bearing the attested specimen signature/left hand thump impressions along with photograph is also enclosed. If the Pensioner wishes to draw his/her pension through an authorised agent, the Pensioner's portion of the P.P.O. may on application by the pensioner, be sent to the authorised agent through registered post provided the latter has executed a bond of indemnity to refund overpayments. A written acknowledgement of the receipt of pensioner's portion of the payment order should, however, be obtained from the pensioner through the grant for record. A certificate from the pensioner's D.D.O to the effect of drawl/nom=drawl of provisional pension/Family Pension/DCRG duly countersigned by respective Treasury Officer may be obtained and the amount shown therein, if any, may be recorded from first payment.

Please acknowledge the receipt.

Sd/.

Director of pension, Assam

17. That being so, it cannot be said that there was any wilful violation of the order of this Court dated 25.04.2023. And on such count, the contempt petition, being Cont. Cas (C) No. 130/2024 deserves to be dismissed and accordingly, the same stands dismissed.

18. It is also to be noted here that the petitioner had overstayed from 01.02.2018 to 30.06.2021. So, it becomes clear that no pension was granted to the petitioner for the period of his overstay. The pension was granted to him with effect from 01.07.2021. The logic behind denying the pension for the Page No.# 14/15

overstay period, as per the affidavit-in-opposition of respondent No.4, and also from the submission of Mr. Dewri, is that since the petitioner had already drawn the salary for the overstay period, with all cumulative increment, the petitioner has been given the pension fixing the pay as on the actual date of retirement i.e. 31/01/2018, but with effect from 01.07.2021.

19. The stand, so taken by the respondent No.4, appears to be logical as because the petitioner is not entitled to salary and pensionery benefits concurrently. If the petitioner is paid salary up to 01.07.2021, the entitlement of pension cannot be extended up to that date. Reference in this context can be made to following decision of Hon'ble Supreme Court in Coal India Ltd. v. Ardhendu Bikas Bhattacharjee, reported in (2005) 12 SCC 201, wherein it has been held as under:-

"9. It is, however, stated that during this period the respondent has worked as an employee of the appellant Company and has superannuated from service on attaining the requisite age on the basis of the duplicate matriculation certificate. He has been paid his salary and allowances in accordance with the Rules. It would be harsh to direct the respondent to refund the pay and allowances paid to him during this period, particularly when he has actually worked pursuant to orders of the Court. However, we direct that for service benefits including post-retirement benefits, the service rendered by the respondent shall be reckoned on the basis of the certificate originally submitted by him disclosing his date of birth as 31-12-1938. His date of retirement shall be determined on the basis of the aforesaid date of birth. For the additional service rendered by the respondent, after such retirement, apart from pay and allowances already paid to him, no other service benefit shall be given to him."

20. Again in the case of State of U.P. v. Shiv Narain Upadhyaya, Page No.# 15/15

(2005) 6 SCC 49 Hon'ble Supreme Court has held as under:-

"14. Above being the position the High Court was clearly in error in holding that the date of birth of the respondent employee was 1-9-1939, contrary to what has been recorded in the service book. We find that the respondent employee had rendered service till the order dated 31-1-1991 was passed. It would not be equitable to direct refund of salary received by him up to 31-1-1991 beyond the actual date of superannuation i.e. 30-9-1990. However, the period beyond the actual date of superannuation i.e. from 30-9-1990 to 31-1-1991 shall not be reckoned towards his retiral benefits."

21. In the result, this Court finds this petition devoid of merit and accordingly, the same stands dismissed leaving the parties to bear their own costs.

JUDGE

Comparing Assistant