Bhagwan Ram Chauhan vs State Of Assam And 4 Ors.

Heard Ms. B. Bora, learned counsel for the petitioner, Ms. S. Kemprai, learned counsel appearing for the authorities in the KAAC, Mr. N. Sarma,

learned Standing Counsel for the Elementary Education Department, Ms. D.D Barman, learned Additional Senior Government Advocate and Mr. B.

Gogoi, learned Standing Counsel for the Finance Department.

The petitioner, who was appointed as the Head Pandit in the Mosoka Hindi LP School in the Karbi Anglong district on 28.07.1979, superannuated

from service on 03.07.2013. Upon his retirement, the petitioner was paid a provisional pension @ Rs.9355/- per month till the process of his regular

pension was finalized. The Finance and Accounts Officer in the Directorate of Pension, Assam, made a communication dated 24.05.2017 to the

District Primary Education Officer, Karbi Anglong, wherein it was provided that the petitioner having been appointed on 01.07.1979, his pay as on

01.01.1981 ought to have been Rs.524/-instead of Rs.536/-. Accordingly, it was ordered that the excess amount drawn by the petitioner during his

entire service tenure from 1981 be recovered.

Accordingly, the District Primary Education Officer, Karbi Anglong district submitted a recovery statement amounting to Rs.2,56,998/- from the

petitioner. Subsequently, the Finance and Accounts Officer in the Directorate of Pension had made a further communication dated 10.05.2018 to the

District Primary Education Officer, Karbi Anglong that if the excess amount of Rs.2,56,998/- was not due to any misrepresentation or fraud on the

part of the petitioner, the concerned recovery be waived. In the circumstance, the Deputy Secretary in the Primary Education Department of KAAC

made a communication dated 28.08.2018 to the Commissioner and Secretary to the Government of Assam in the Elementary Education Department

that the matter be taken up with the Finance Department of the Government of Assam for waiving the excess amount drawn by the petitioner.

In the writ petition, although the statement of recovery of the amount of Rs.2,56,998/-has been assailed, but at the same time, it is also stated that in

spite of such communication of the Deputy Secretary in the Primary Education Department of KAAC, no further action has been taken by the

respondent authorities to waive the recovery of the aforesaid amount.

This Court perused the affidavit of the authorities in the KAAC, which merely states that subsequently it was detected that the pay of the petitioner

was wrongly fixed at Rs.536/-per month instead of Rs.524/- per month in the year 1981. Although an attempt was made to state that in the Service

Book, there are over writing and manipulation, but nothing substantial has been produced that because of such over writing alone, a higher pay was

paid to the petitioner, nor it is stated that such manipulation alone had lead to the payment of higher pay.

But, be that as it may, in response to the communication dated 10.05.2018 of the Finance and Accounts Officer in the Directorate of Pension, the

authorities in the KAAC had recommended for a waiver, meaning thereby that they are of the view that the excess payment was made to the

petitioner not because of any misrepresentation or fraud on his part.

The law in this respect has been settled by the Hon’ble Supreme Court in Shyam Babu Verma and others â€"vs- Union of India and others,

reported in (1994) 2 SCC 521 and State of Punjab and Others â€"vs- Rafiq Masih (White Washer) and others, reported in (2015) 4 SCC 334, wherein

it had been held that in the event an excess salary is paid to an employee during his service tenure because of no fault of his, such excess payment

cannot be recovered from the retirement benefits.

In view of the above, the recovery statement of Rs.2,56,998/- is accordingly set aside and the pensionery dues of the petitioner be finalized

accordingly. However, it is made clear that the finalization of the pensionery dues shall be on the basis of the correct pay payable to the petitioner and

not based upon the incorrect higher pay that was paid to him during his service tenure.

The aforesaid exercise be done within a period of three months from the date of receipt of a certified copy of this judgment and order. In terms of

the above, the writ petition stands disposed of.