WP(C)/4905/2025 of PHANIDHAR BARMAN Vs THE STATE OF ASSAM AND 5 ORS on 25 August 2026

ORDER

Date : 26.08.2026

Heard Mr. P. K. Das, learned counsel appearing for the petitioner. Also heard Mr. T. Thakuria, learned Standing Counsel, Secondary Education Department, appearing for the respondent Nos. 1, 2 & 3, Ms. S. Sarma, learned Government Advocate appearing for the respondent Nos. 4 & 5, and Mr. A. Chaliha, learned Standing Counsel, Finance Department appearing for the respondent No. 6.

2. By way of this writ petition filed under Article 226 of the Constitution of India, the petitioner seeks a direction upon the respondent authorities to release his pension and other pensionary benefits under the provisions of the Assam Services (Pension) Rules, 1969, without making any recovery from his pension.

3. The petitioner retired from service as an Assistant Teacher (Craft) on 31.03.2024 from Belsor Higher Secondary School, Nalbari, District Circle, Nalbari. After his retirement, he submitted the requisite documents for processing of his pension. However, during scrutiny of the pension papers, the Finance and Accounts Officer noticed a discrepancy in the fixation of his pay. It was observed that, as on 01.01.2006, his pay had been fixed at Rs.10,660/- instead of Rs.9,100/-. On account of the aforesaid discrepancy, the pension papers were returned to the office of the respondent No.3 and, according to the petitioner, no further steps were taken thereafter for release of his pension and pensionary benefits.

4. The petitioner contends that, even assuming that there had been an erroneous fixation of pay resulting in excess payment, no recovery can be made from him at this stage, particularly when he has already retired from service. Reliance has been placed upon the judgment of the Apex Court in State of Punjab & Ors. v. Rafiq Masih (White Washer) & Ors., reported in (2015) 4 SCC 334.

5. Per contra, Mr. T. Thakuria, learned Standing Counsel, Secondary Education Department, submits that, upon the petitioner’s retirement, it was noticed that he had drawn excess pay amounting to Rs.17,16,199/- for the period from January 2006 to March 2024. According to the respondents, the petitioner’s pay ought to have been fixed at Rs.9,100/- instead of Rs.10,660/- with effect from 01.01.2006.

6. Learned Standing Counsel has placed before the Court the instructions dated 17.08.2026 issued by the Inspector of Schools, Nalbari District Circle, which indicate, inter alia, that the petitioner had initially joined service on 20.02.1995 on ad hoc basis and that his service was subsequently regularised. It is further stated therein that, pursuant to an order passed by the Assam Administrative Tribunal dated 06.02.2016 in Appeal No. ATA/2014, the respondents carried out a fresh fixation of the petitioner’s revised pay with effect from 01.01.2006. It is stated that, in the course of such fixation, his pay was fixed at Rs.10,660/- instead of Rs.9,100/-, resulting, according to the respondents, in excess drawal of Rs.17,16,199/-.

7. The instructions further disclose that the concerned authority, by communication dated 14.05.2026, requested the petitioner to submit a waiver proposal or consent letter in respect of the proposed recovery for uploading the requisite details in the Kritagyata Portal. It is stated that the petitioner did not receive the communication physically and that the same was thereafter dispatched to him by speed post on 22.05.2026. No communication from the petitioner was received thereafter.

8. The issue as to whether recovery of excess payment can be effected from a retired employee is no longer res integra. In Rafiq Masih (supra), the Apex Court, after considering the earlier decisions on the subject, summarised the circumstances in which recovery by the employer would be impermissible in law. Paragraph 18 of the aforesaid judgment read as under: “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 employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).

(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from 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.”

9. In the present case, the petitioner is a retired employee. The alleged excess payment is stated to have been made over a period extending from January 2006 to March 2024. The petitioner had, therefore, retired before the proposed recovery could be effected, and the alleged excess payment had also continued for a period substantially exceeding five years.

10. Significantly, learned counsel appearing for the respondents fairly concedes that, in view of the law laid down by the Apex Court in Rafiq Masih (supra), the present case is squarely covered by the aforesaid principles and that recovery of the alleged excess payment from the petitioner would not be permissible in law.

11. In view of the aforesaid position, the writ petition stands allowed. The respondent authorities are directed to process and release the pension and other pensionary benefits payable to the petitioner under the Assam Services (Pension) Rules, 1969, without effecting any recovery on account of the alleged excess payment of pay.

12. The aforesaid exercise shall be completed within a period of three months from the date of receipt of a certified copy of this order.

13. There shall be no order as to costs. JUDGE Comparing Assistant